UDRP complaints hit new high at WIPO

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

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

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

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

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

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.

Crunch Whois privacy talks kick off

ICANN volunteers are meeting this week to attempt to finalize their recommendations on the future of Whois privacy.
Most members of the Expedited Policy Development Process working group have gathered in Toronto for three days of talks on what will likely become, in May this year, new contractually binding ICANN policy.
Discussions are kicking off pretty much at the same time this article is published and will last until Friday afternoon local time.
The EPDP group is due to publish its final report by February 1, leaving enough time for GNSO consideration, public comments, and an ICANN board of directors vote.
Its initial report, which recommended some big changes to Whois output, was published in November. Public comments on this report will lead to largely modest changes to the policy this week.
The timing is tight because Whois policy is currently governed by a one-year Temporary Specification, created by the ICANN board, which expires May 25.
The bulk of the work today will focus on formalizing the “purposes” of Whois data, something that is needed if ICANN policy is to be compliant with the EU General Data Protection Regulation.
The more controversial stuff, where consensus will be extraordinarily difficult to find, comes tomorrow, when the group discusses policies relating to privileged access to private Whois data.
This is the area where intellectual property and security interests, which want a program that enables them to get access to private data, have been clashing with non-commercial stakeholders, which accuse their opponents of advocating “surveillance”.
It’s not expected that a system of standardized, unified access will be created this week or by February 1. Rather, talks will focus on language committing ICANN to work on (or not) such a system in the near future.
Currently, there’s not even a consensus on what the definition of “consensus” is. It could be slow going.
Gluttons for punishment Observers can tune in to the view/listen-only Adobe Connect room for the meetings here.

Exclusive gang of 10 to work on making ICANN the Whois gatekeeper

Ten people have been picked to work on a system that would see ICANN act as the gatekeeper for private Whois data.

The organization today announced the composition of what it’s calling the Technical Study Group on Access to Non-Public Registration Data, or TSG-RD.

As the name suggests, the group is tasked with designing a system that would see ICANN act as a centralized access point for Whois data that, in the GDPR era, is otherwise redacted from public view.

ICANN said such a system:

would place ICANN in the position of determining whether a third-party’s query for non-public registration data ought to be approved to proceed. If approved, ICANN would ask the appropriate registry or registrar to provide the requested data to ICANN, which in turn would provide it to the third party. If ICANN does not approve the request, the query would be denied. 

There’s no current ICANN policy saying that the organization should take on this role, but it’s one possible output of the current Expedited Policy Development Process on Whois, which is focusing on how to bring ICANN policy into compliance with GDPR.

The new group is not going to make the rules governing who can access private Whois data, it’s just to create the technical framework, using RDAP, that could be used to implement such rules.

The idea has been discussed for several months now, with varying degrees of support from contracted parties and the intellectual property community.

Registries and registrars have cautiously welcomed the notion of a central ICANN gateway for Whois data, because they think it might make ICANN the sole “data controller” under GDPR, reducing their own legal liability.

IP interests of course leap to support any idea that they think will give them access to data GDPR has denied them.

The new group, which is not a formal policy-making body in the usual ICANN framework, was hand-picked by Afilias CTO Ram Mohan, at the request of ICANN CEO Goran Marby.

As it’s a technical group, the IP crowd and other stakeholders don’t get a look-in. It’s geeks all the way down. Eight of the 10 are based in North America, the other two in the UK. All are male. A non-zero quantity of them have beards.

• Benedict Addis, Registrar Of Last Resort.
• Gavin Brown, CentralNic.
• Jorge Cano, NIC Mexico.
• Steve Crocker, former ICANN chair.
• Scott Hollenbeck, Verisign.
• Jody Kolker, GoDaddy.
• Murray Kucherawy, Facebook.
• Andy Newton, ARIN.
• Tomofumi Okubo, DigiCert.

While the group is not open to all-comers, it’s not going to be secretive either. Its mailing list is available for public perusal here, and its archived teleconferences, which are due to happen for an hour every Tuesday, can be found here. The first meeting happened this week.

Unlike regular ICANN work, the new group hopes to get its work wrapped up fairly quickly, perhaps even producing an initial spec at the ICANN 64 meeting in Kobe, Japan, next March.

For ICANN, that’s Ludicrous Speed.

First chance to have your say on the future of Whois

RIP: the Whois Admin.
Standard Whois output is set to get slimmed down further under newly published policy proposals.
The community working group looking at post-GDPR Whois has decided that the Admin Contact is no longer necessary, so it’s likely to get scrapped next year.
This is among several recommendations of the Expedited Policy Development Process working group on Whois, which published its initial report for public comment late Wednesday.
As expected, the report stops short of addressing the key question of how third-parties such as intellectual property interests, domain investors, security researchers and the media could get streamlined access to private Whois data.
Indeed, despite over 5,000 person-hours of teleconferences and face-to-face meetings and about 1,000 mailing list messages since work began in early August, the EPDP’s 50 members have yet to reach consensus on many areas of debate.
What they have reached is “tentative agreement” on 22 recommendations on how to bring current ICANN Whois policy into line with EU privacy law, the General Data Protection Regulation.
The work is designed to replace the current Temporary Specification, a Band-Aid imposed by the ICANN board of directors, which is due to expire next May.
The EPDP initial report proposes a few significant changes to what data is collected and publicly displayed by the Whois system.
The most notable change is the complete elimination of the Admin Contact fields.
Currently, Whois contains contact information for the registrant, admin contact and technical contact. It’s often the same data replicated across all three records, and under the Temp Spec the large majority of the data is redacted.
Under the EPDP’s proposal, the Admin Contact is superfluous and should be abandoned altogether. Not only would it not be displayed, but registrars would not even collect the data.
The Tech Contact is also getting a haircut. Registrars would now only be able to collect name, phone and email address, and it would be optional for the registrant whether to provide this data at all. In any event, all three fields would be redacted from public Whois output.
For the registrant, all contact information except state/province and country would be redacted.
There’s no agreement yet on whether the optional “organization” field would be redacted, but the group has agreed that registrars should provide better guidance to registrants about whether they need to provide that data.
While data on legal persons such as companies is not protected by GDPR, some fear that natural person registrants may just naively type their own name into that box when registering a name, inadvertently revealing their identities to the public.
Those providing Whois output would be obliged, as they are under the Temp Spec, to publish an anonymized email address or web-based contact form to allow users to contact registrants without personal information being disclosed.
That German lawsuit
The recommendation to slash what data is collected could have an impact on ICANN’s lawsuit against Tucows’ German subsidiary, EPAG.
ICANN is suing EPAG after the registrar decided that collecting admin and tech contact info was not compliant with GPDR. It’s been looking, unsuccessfully, for a ruling forcing the company to carry on collecting this data.
Tucows is of the view that if the admin and tech contacts are third parties to the registration agreement, it has no right to collect data about them under the GDPR.
If ICANN’s own community policy development process is siding with Tucows, this could guide ICANN’s future legal strategy, but not, it appears, until it becomes firm consensus policy.
I asked ICANN general counsel John Jeffrey about whether the EPDP’s work could affect the lawsuit during an interview October 5, shortly after it became clear that the admin/tech contact days might be numbered.
“Maybe,” he said. “If it becomes part of the policy we’ll have to assess that. Until there’s a new policy though, what we’re working with is the Temp Spec. The Temp Spec we believe is enforceable, we believe have the legal support for that, and we’ll continue down that path.”
(It might be worth noting that Thomas Rickert, whose law firm represents EPAG in this case, is on the EPDP working group in his capacity of head of domains for German trade group eco. He is, of course, just one of the 31 EPDP members developing these recommendations at any given time.)
IP wheel-spinning
The main reason it’s taken the EPDP so long to reach the initial report stage — the report was originally due during the ICANN 63 Barcelona meeting a month ago — has been the incessant bickering between those advocating for, and opposing, the rights of intellectual property interests to access private Whois data.
EPDP members from the IP Constituency and Business Constituency have been attempting to future-proof the work by getting as many references to IP issues inserted into the recommendations as they can, before the group has turned its attention to addressing them specifically.
But they’ve been opposed every step of the way by the Non-Commercial Stakeholders Group, which is concerned the IP lobby is trying to policy its way around GDPR as it relates to Whois.
Many hours have been consumed by these often-heated debates.
My feeling is that the NCSG has been generally winning, but probably mainly because the working group’s charter forbade discussion about access until other issues had been addressed.
As it stands today, the initial report contains this language in Recommendation #2:

Per the EPDP Team Charter, the EPDP Team is committed to considering a system for Standardized Access to non-public Registration Data once the gating questions in the charter have been answered. This will include addressing questions such as:
• What are the legitimate purposes for third parties to access registration data?
• What are the eligibility criteria for access to non-public Registration data?
• Do those parties/groups consist of different types of third-party requestors?
• What data elements should each user/party have access to?
In this context, amongst others, disclosure in the course of intellectual property infringement and DNS abuse cases will be considered

This is basically a placeholder to assure the IP crowd that their wishes are still on the table for future debate — which I don’t think was ever in any doubt — but even this basic recommendation took hours to agree to.
The EPDP’s final report is due February 1, so it has just 70 days to discuss this hypothetical “Standardized Access” model. That’s assuming it started talks today, which it hasn’t.
It’s just nine weeks if we assume not a lot is going to happen over the Christmas/New Year week (most of the working group come from countries that celebrate these holidays).
For context, it’s taken the working group about 115 days just to get to the position it is in today.
Even if Standardized Access was the only issue being discussed — and it’s not, the group is also simultaneously going to be considering the public comment on its initial report, for starters — this is an absurdly aggressive deadline.
I feel fairly confident in predicting that, come February 1, there will be no agreement on a Standardized Access framework, at least not one that would be close to implementable.
Have your say
All 22 recommendations, along with a long list of questions, have now been put out for public comment.
The working group is keen to point out that all comments should provide rationales, and consider whether what they’re asking for would be GDPR-compliant, so comments along the lines of “Waaah! Whois should be open!” will likely be rapidly filed to the recycle bin.
It’s a big ask, considering that most people have just a slim grasp of what GDPR compliance actually means.
Complicating matters, ICANN is testing out a new way to process public comments this time around.
Instead of sending comments in by email, which has been the norm for two decades, a nine-page Google form has been created. This is intended to make it easier to link comments to specific recommendations. There’s also a Word version of the form that can be emailed.
Given the time constraints, it seems like an odd moment to be testing out new processes, but perhaps it will streamline things as hoped. We’ll see.

This is how AppDetex works

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