No Verfügungsanspruch for ICANN in GDPR lawsuit

ICANN has lost its latest attempt to use the German courts to force Tucows to continue to collect Whois records the registrar thinks are unnecessary.
In an August 1 ruling, a translation of which (pdf) has been published by ICANN, the court ruled that no preliminary injunction (or “Verfügungsanspruch”) was necessary, because ICANN has not shown it would suffer irreparable harm without one.
ICANN wants Tucows’ German subsidiary EPAG to carry on collecting the Admin-C and Tech-C fields of Whois, even though the registrar thinks that would make it fall foul of Europe’s new General Data Protection Regulation.
The organization has already had two adverse decisions at a lower court, and the appeals court‘s latest ruling does not change anything. The judge ruled:

The Applicant [ICANN] has already not demonstrated that a preliminary injunction is required in order to avoid substantial disadvantages. To the extent the Applicant submitted in its application that interim relief was necessary in order to avert irreparable harm by arguing that the data to be collected would otherwise be irretrievably lost, this is not convincing. The Defendant [EPAG] could at a later point collect this data from the respective domain holder by a simple inquiry, provided that an obligation in this regard should be established.

The court also declined to refer the case to the European Court of Justice, as ICANN had wanted, because nothing in the ruling required GDPR to be interpreted.
This a a blow, because the whole point of the lawsuit is for ICANN and registrars to get some clarity on what the hell GDPR actually requires when it comes to Whois.
ICANN said it is “considering its next steps, including possible additional filings before the German courts”, noting that the “main proceedings” of the case are still ahead of it.

Fight over Whois access starts early

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

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.

Facebook clashes with registrars after massive private data request

Facebook is on the warpath, testing the limits of personal data disclosure in the post-GDPR world.
Via an intermediary called AppDetex, the company recently filed 500 requests for non-public Whois contact information with various registrars, covering potentially thousands of domains, and is now complaining to ICANN that almost all of the replies it received were “non-responsive”.
DI has learned that Facebook is not only asking registrars for Whois data on specific domains it believes infringe its trademarks, however. It’s also asking them to provide complete lists of domains owned by the same registrant, along with the Whois data for those domains, something registrars have never been obliged to provide, even pre-GDPR.
It’s now pissed that almost all of its requests were blown off, with registrars giving various reasons they could not provide the data.
AppDetex is a brand protection services firm and ICANN-accredited registrar. It’s built an automated system for generating Whois disclosure requests and sending them to registrars.
Ben Milam, its general counsel, wrote to ICANN last week to urge the organization to come up with, and more importantly enforce, a framework for brand owners to request private Whois data.
The company has stopped short of filing formal complaints against the registrars with ICANN’s compliance division, but Milam said it will in future:

we do plan to file complaints in the future, but not until ICANN has (i) established proper disclosure guidelines for non-public WHOIS requests for the registrar base to follow, and (ii) implemented an enforcement process that will ensure that brand holder requests are being satisfied.

The letter says that only one registrar responded adequately, to three of its disclosure requests. That was FBS Inc, which I believe is Turkey’s largest registrar. Turkey is not in the EU.
One registrar on Facebook’s naughty list is Ireland-based Blacknight Solutions, which received three disclosure requests but did not provide AppDetex with the information it wanted.
Blacknight CEO Michele Neylon shared a copy of one of these requests, which he said was received via email July 2, with DI.
In my view, the request is clearly automated, giving the registrar a deadline to respond 48 hours in the future accurate to the second. It cites five Facebook trademarks — Facebook, FB, Instagram, Oculous and WhatsApp.
At Blacknight’s request, I won’t disclose the domain here, but it begins with the string “insta”. At first glance it’s not an clear-cut case of cybersquatting the Instagram trademark. It’s currently parked, displaying ad links unrelated to Instagram.
The email asks the registrar to turn over the full non-public Whois contact information for the registrant, technical contact and administrative contact, but it goes on to also ask for:

4. All other domain names registered under this registrant’s account or email address
5. All information in requests 1, 2, and 3 for all domains provided in response to request 4

This would increase the volume of Whois records requested by Facebook from 500 to, very probably, thousands.
This reverse-Whois data was not previously available via vanilla registrar-provided Whois, though it may be under successor protocol RDAP. Brand owners would have to use a commercial third-party service such as DomainTools in order to connect a registrant to the rest of his portfolio.
It’s debatable whether registrars will be obliged to provide this reverse-Whois capability on non-public data to brand owners even after RDAP becomes the norm.
The request says Facebook needs the data in order “to investigate and prevent intellectual property infringement and contact infringing parties and relevant service providers” and “to facilitate legal action against the registrant”.
Facebook says it’s entitled to the data under Article 6(1)(f) of the GDPR as it’s “necessary for the purposes of our legitimate interests, namely (1) identifying the registered holder of a domain name and their contact information to investigate and respond to potential trademark infringement and (2) enforcing legal claims.”
Currently, registrars are governed by ICANN’s Temporary Specification for Whois, a GDPR-related Band-Aid designed to last until the ICANN community can create a formal policy.
Access to non-public Whois data is governed by section 4 of the Temp Spec, which reads in part:

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 pursuant to Article 6(1)(f) GDPR.

In the absence of a formal ICANN policy, legal precedent, or specific guidance from data protection authorities, it’s not abundantly clear how registrars are supposed to comply with this clause of the spec, which may explain why Facebook is getting different responses from different registrars.
Neylon said that Blacknight responded to the disclosure requests by asking Facebook to produce an Irish court order.
He said the requests were overly broad, did not provide any contact information for the requester, did not provide a specific complaint against the registrants, and did not specify what privacy safeguards Facebook planned to subject the data to once it was handed over.
It seems Blacknight was not alone. According to AppDetex’s letter to ICANN, at least six other registrars replied denying the requests and saying:

complainant (Facebook) must utilize legal process of a subpoena or court order; complainant must file a UDRP action; complainant must file an action with WIPO; complainant must contact WIPO; and/or complainant’s request has been forwarded to the domain owner.

Milam said (pdf) that he expects the volume of requests to increase and that registrars’ responses will be forwarded to ICANN Compliance to help create a normalized framework for dealing with such requests.

ICANN’s GDPR lawsuit bounced up to appeals court

ICANN’s lawsuit against Tucows’ German subsidiary EPAG has been bounced up to a higher court in Cologne.
The suit seeks to force Tucows to continue to collect the Admin-C and Tech-C fields of the Whois spec, something which is required by the Registrar Accreditation Agreement but which Tucows argues would force it to breach the General Data Protection Regulation.
The court of first instance denied ICANN’s application for an injunction.
ICANN then appealed, suggesting that the case should be referred to the European Court of Justice for a definitive answer.
Instead, the Bonn “Regional Court” has referred the case to the “Higher Regional Court” in Cologne. ICANN said the ECJ referral is still a possibility, however.
The lower court did not change its original ruling, but nor did it consider ICANN’s new arguments, which will transfer to the higher court’s attention, according to ICANN.
If you want a migraine to match mine, you can read an ICANN-provided English translation of the latest ruling here (pdf).

Is the new Whois policy group already doomed to fail?

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.

Pritz to be named chair of Whois group

Former ICANN senior vice president Kurt Pritz is expected to be named chair of the group tasked with reforming Whois in the post-GDPR world.
Sources familiar with the situation tell DI that Pritz was selected from three candidates who put themselves forward for the grueling policy-making task.
I’m told that choice was made by GNSO Council’s leadership and selection committee (minus Pritz’s wife, Donna Austin, who recused herself) and will have to be confirmed by the full Council when it meets this Thursday.
Pritz would chair the GNSO’s first-ever Expedited Policy Development Process working group, which is expected to provide an ICANN community response to ICANN org’s recent, top-down Temporary Specification for Whois.
The Temp Spec, written by ICANN in response to the GDPR privacy law, is the thing that is contractually forcing all gTLD registries and registrars to redact personal information from their public Whois records.
Because it’s temporary, it will expire May 24 next year, one year after it came into effect.
The EPDP will put the force of community consensus behind the policy that replaces it, but it’s unlikely to differ a great deal from the Temp Spec, so it would be unwise to get your hopes up that Whois will return to pre-GDPR levels of accessibility — ICANN policy cannot overrule the law.
The EPDP chair’s job is expected to be extremely taxing. During the recent ICANN meeting in Panama, it was said that regular, non-chair working group members could be expected to commit as much as 30 hours a week to the project.
ICANN expects that the EPDP’s core work should be complete before ICANN 63, which begins October 20, with its final report due next February.
Given that the ICANN community has failed to come to much consensus on anything Whois related for two decades, these are extremely aggressive targets.
To maintain focus, the EPDP group is going to be kept relatively small, but there’s still bickering about the make-up of the group, with non-commercial interests upset the commercial side of house is getting more representation.
The chair’s role was therefore potentially controversial — neutrality was seen as a key quality when ICANN advertised the gig a couple of weeks ago.
Pritz currently works for the .art new gTLD registry operator UK Creative Ideas, so technically he would be in the Registries Stakeholder Group.
But he’s also one of the key architects of the new gTLD program, ICANN’s point man on the application process before his resignation in late 2012, so he has extensive experience herding cats in a relatively neutral way.
Since then, he’s had stints as a consultant and as executive director of the Domain Name Association.

Could crypto solve the Whois crisis?

Could there be a cryptographic solution to some of the problems caused by GDPR’s impact on public Whois databases? Security experts think so.
The Anti-Phishing Working Group has proposed that hashing personal information and publishing it could help security researchers carry on using Whois to finger abusive domain names.
In a letter to ICANN, APWG recently said that such a system would allow registries and registrars to keep their customers’ data private, but would still enable researchers to identify names registered in bulk by spammers and the like.
“Redacting all registration records which were formerly publicly available has unintended and undesirable consequences to the very citizens and residents that electronic privacy legislation intends to protect,” the letter (pdf) says.
Under the proposed system, each registry or registrar would generate a private key for itself. For each Whois field containing private data, the data would be added to the key and hashed using a standard algorithm such as SHA-512.
For items such as physical addresses, all the address-related fields would be concatenated, with the key, before hashing the combined value.
The resulting hash — a long string of gibberish characters — would then be published in the public Whois instead of the [REDACTED] notice mandated by current ICANN policy.
Security researchers would then be able to identify domains belonging to the same purported registrant by searching for domains containing the same hash values.
It’s not a perfect solution. Because each registry or registrar would have their own key, the same registrant would have different hash values in different TLDs, so it would not be possible to search across TLDs.
But that may not be a huge problem, given that bad guys tend to bulk-register names in TLDs that have special offers on.
The hashing system may also be beneficial to interest groups such as trademark owners and law enforcement, which also look for registration patterns when tracking down abuse registrants.
The proposal would create implementation headaches for registries and registrars — which would actually have to build the crypto into their systems — and compliance challenges for ICANN.
The paper notes that ICANN would have to monitor its contracted parties — not all of which may necessarily be unfriendly to spammers — to make sure they’re hashing the data correctly.

Euro-Whois advice still as clear as mud

European privacy chiefs have again weighed in to the ongoing debate about GDPR and Whois, offering another thin batch of vague advice to ICANN.
The European Data Protection Board, in its latest missive (pdf), fails to provide much of the granular “clarity” ICANN has been looking for, in my view.
It does offer a few pieces of specific guidance, but it seems to me that the general gist of the letter from EDPB chair Andrea Jelinek to ICANN CEO Goran Marby is basically: “You’re on your own buddy.”
If the question ICANN asked was “How can we comply with GDPR?” the answer, again, appears to be generally: “By complying with GDPR.”
To make matters worse, Jelinek signs off with a note implying that the EDPB now thinks that it has given ICANN all the advice it needs to run off and create a GDPR-compliant accreditation system for legitimate access to private Whois data.
The EDPB is the body that replaced the Article 29 Working Party after GDPR came into effect in May. It’s made up of the data protection authorities of all the EU member states.
On the accreditation discussion — which aims to give the likes of trademark owners and security researchers access to Whois data — the clearest piece of advice in the letter is arguably:

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

That’s a fairly straightforward statement that ICANN is fine to go ahead with the creation of an accreditation model for third parties, just as long as it’s quite tightly regulated.
But like so much of its advice, it contains an unhelpful nested reference to GDPR compliance.
The letter goes on to say that logging Whois queries should be part of these controls, but that care should be taken not to tip off registrants being investigated by law enforcement.
But it makes no effort to answer Marby’s questions (pdf) about who these legit third-parties might be and how ICANN might go about identifying them, which is probably the most important outstanding issue right now.
Jelinek also addresses ICANN’s lawsuit against Tucows’ German subsidiary EPAG, and I have to disagree with interpretations of its position published elsewhere.
The Register’s Kieren McCarthy, my Chuckle Brother from another Chuckle Mother, reckons the EDPB has torpedoed the lawsuit by “stating clearly that it cannot force people to provide additional ‘admin’ and ‘technical’ contacts for a given domain name”.
Under my reading, what it actually states is that registrants should be able to either use their own contact data, or anonymized contact information identifying a third party, in these records.
The EDPB clearly anticipates that admin and technical contacts can continue to exist, as long as they contain non-personal contact information such as “admin@example.com”, rather than “kevin@example.com”.
That’s considerably more in line with ICANN’s position than that of Tucows, which wants to stop collecting that data altogether.
One area where EDPB does in fact shoot down ICANN’s new Whois policy is when it comes to data retention.
The current ICANN contracts make registrars retain data for two years, but the EDPB notes that ICANN does not explain why or where that number comes from (I hear it was “pulled out of somebody’s ass”).
The EDPB says that ICANN needs to “re-evaluate the proposed data retention period of two years and to explicitly justify and document why it is necessary”.
Finally, the EDPB weighs in on the issue of Whois records for “legal persons” (as opposed to “natural persons”). It turns out their Whois records are not immune to GDPR either.
If a company lists John Smith and john.smith@example.com in its Whois records, that’s personal data on Mr Smith and therefore falls under GDPR, the letter says.
That should provide a strong incentive for registries and registrars to stop publishing potentially personal fields, if they’re still doing so.

How ICANN thinks YOU could get full Whois access

With blanket public Whois access now firmly a thing of the past due to GDPR, ICANN has set the ball rolling on an accreditation system that would reopen the data doors to certain select parties.
The org yesterday published a high-level framework document for a “Unified Access Model” that could give Whois access to approved users such as police, lawyers, and even common registrants.
It contains many elements that are sure to be controversial, such as paying fees for Whois access, the right of governments to decide who gets approved, and ICANN’s right to see every single Whois query carried out under the program.
It’s basically ICANN’s attempt to frame the conversation about Whois access, outlining what it expects from community members such as registries and registrars, governments and others.
It outlines a future in which multiple “Authenticating Bodies” would hand out credentials (either directly or via referral to a central authority) to parties they deem eligible for full Whois access.
These Authenticating Bodies could include entities such as WIPO or the Trademark Clearinghouse for trademark lawyers and Interpol or Europol for law enforcement agencies.
Once suitably credentialed, Whois users would either get unexpurgated Whois access or access to only fields appropriate to their stated purpose. That’s one of many questions still open for discussion.
There could be fees levied at various stages of the process, but ICANN says there should be a study of the financial implications of the model before a decision is made.
Whois users would have to agree to a code of conduct specific to their role (cop, lawyer, registrant, etc) that would limit how they could use the data they acquire.
Additionally, registrars and registries would have to log every single Whois query and hand those logs over to ICANN for compliance and audit purposes. ICANN said:

based on initial discussions with members of the Article 29 Working Party, ICANN proposes that registry operators and registrars would be required to maintain audit logs of domain name queries for non-public WHOIS data, unless logging a particular entry is contrary to a relevant court order. The logs would be available to ICANN org for audit/compliance purposes, relevant data protection authorities, the registrant, or pursuant to a court order.

On the higher-level question of who should be given the keys to the new gates Whois — it’s calling them “Eligible User Groups” — ICANN wants to outsource the difficult decisions to either governments or, as a backstop, the ICANN community.
The proposal says: “Eligible User Groups might include intellectual property rights holders, law enforcement authorities, operational security researchers, and individual registrants.”
It wants the European Economic Area members of its Governmental Advisory Committee, and then the GAC as a whole, to “identify or facilitate identification of broad categories” of eligible groups.
ICANN’s next public meeting, ICANN 62, kicks off in Panama at the weekend, so the GAC’s next formal communique, which could address this issue, is about a week away.
ICANN also wants the GAC to help it identify potential Authenticating Bodies that would hand out credentials.
But the GAC, in its most recent communique, has already declined such a role, saying in March that it “does not envision an operational role in designing and implementing the proposed accreditation programs”.
If it sticks with that position, ICANN says it will turn to the community to have this difficult conversation.
It notes specifically the informal working group that is currently developing a “community” Accreditation & Access Model For Non-Public WHOIS Data.
This group is fairly controversial as it is perceived by some, fairly I think, as being dominated by intellectual property interests.
The group’s draft model is already in version 1.6 (pdf), and at 47 pages is much more detailed than ICANN’s proposal, but its low-traffic mailing list has almost no contracted parties on board and the IP guys are very decidedly holding the pen.
There’s also a separate draft, the Palage Differentiated Registrant Data Access Model (or “Philly Special”) (Word doc), written by consultant Michael Palage, which has received even less public discussion.
ICANN’s proposal alludes to these drafts, but it does not formally endorse either as some had feared. It does, however, provide a table (pdf) comparing its own model to the other two.
What do not get a mention are the access models already being implemented by individual registrars.
Notably, Tucows is ready to launch TieredAccess.com, a portal for would-be Whois users to obtain credentials to view Tucows-managed Whois records.
This system grants varying levels of access to “law enforcement, commercial litigation interests, and security researchers”, with law enforcement given the highest level of access, Tucows explained in a blog post yesterday.
That policy is based on the GDPR principle of “data minimization”, which is the key reason it’s currently embroiled in an ICANN lawsuit (unrelated to accreditation) in Germany.
Anyway, now that ICANN has published its own starting point proposal, it is now expected that the community will start to discuss the draft in a more formal ICANN setting. There are several sessions devoted to GDPR and Whois in Panama.
ICANN also expects to take the proposal to the European Data Protection Board, the EU committee of data protection authorities that replaced the Article 29 Working Party when GDPR kicked in last month.
However, in order for any of this to become binding on registries and registrars it will have to be baked into their contracts, which will mean it going through the regular ICANN policy development process, and it’s still not clear how much enthusiasm there is for that step happening soon.