In GDPR case, ICANN ready to fight Tucows to the bitter end

ICANN has appealed its recent court defeat as it attempts to force a Tucows subsidiary to carry on collecting full Whois data from customers.
The org said yesterday that it is taking its lawsuit against Germany-based EPAG to a higher court and has asked it to bounce the case up to the European Court of Justice, as the first test case of the new General Data Protection Regulation.
In its appeal, an English translation (pdf) of which has been published, ICANN argues that the Higher Regional Court of Cologne must provide an interpretation of GDPR in order to rule on its request for an injunction.
And if it does, ICANN says, then it is obliged by the GDPR itself to refer that question to the ECJ, Europe’s highest judicial authority.
The case concerns Tucows’ refusal to carry on collecting contact information about the administrative and technical contacts for each domain name it sells, which it is contractually obliged to do under ICANN’s Whois policy.
These are the Admin-C and Tech-C fields that complement the registrant’s own contact information, which Tucows is of course still collecting.
Tucows says that these extra fields are unnecessary, and that GDPR demands it minimize the amount of data it collects to only that which it strictly needs to execute the registration contact.
It also argues that, if the Admin-C and Tech-C are third parties, it has no business collecting any data on them at all.
According to Tucows legal filings, more than half of its 10 million domains have identical data for all three contacts, and in more than three quarters of cases the registrant and Admin-C are identical.
In its appeal, ICANN argues that the data is “crucial for the objectives of a secure domain name system, including but not limited to the legitimate purposes of consumer protection,
investigation of cybercrime, DNS abuse and intellectual property protection and law enforcement needs”.
ICANN uses Tucows’ own numbers against it, pointing out that if Tucow has 7.5 million domains with shared registrant and Admin-C data, it therefore has 2.5 million domains where the Admin-C is a different person or entity, proving the utility of these records.
It says that registrars must continue to collect the disputed data, at the very least if it has secured consent from the third parties named.
ICANN says that nothing in the Whois policy requires personal data to be collected on “natural persons” — Admin-C and Tech-C could quite easily be legal persons — therefore there is no direct clash with GDPR, which only covers natural persons.
Its appeal, in translation, reads: “the GDPR is irrelevant if no data about natural persons are collected. In this respect, the Defendant is contractually obliged to collect such data, and failure to do so violates its contract with the Applicant.”
It goes on to argue that even if the registrant chooses to provide natural-person data, that’s still perfectly fine as a “legitimate purpose” under GDPR.
ICANN was handed a blow last month after a Bonn-based court refused to give it an injunction obliging EPAG (and, by inference, all registrars) to continue collecting Admin-C and Tech-C.
The lower court had said that registrants would be able to continue to voluntarily provide Admin-C and Tech-C, but ICANN’s appeal points out that this is not true as EPAG is no longer requesting or collecting this data.
In ICANN’s estimation, the lower court declined to comment on the GDPR implications of its decision.
It says the appeals court, referred to in translation as the “Senate”, cannot avoid interpreting GDPR if it has any hope of ruling on the injunction request.
Given the lack of GDPR case law — the regulation has only been in effect for a few weeks — ICANN reckons the German court is obliged by GDPR itself to kick the can up to the ECJ.
It says: “If the Senate is therefore convinced that the outcome of this procedure depends on the interpretation of certain provisions of the GDPR, the Senate must refer these possible questions to the ECJ for a preliminary ruling”.
It adds that should a referral happen it should happen under the ECJ’s “expedited” procedures.
An ECJ ruling has been in ICANN’s sights for some time; late last year CEO Goran Marby was pointing out that a decision from the EU’s top court would probably be the only way full legal clarity on GDPR’s intersection with Whois could be obtained.
It should be pointed out of course that this case is limited to the data collection issue.
The far, far trickier issue of when this data should be released to people who believe they have a legitimate purpose to see it — think: trademark guys — isn’t even up for discussion in the courts.
It will be, of course. Give it time.
All of ICANN’s legal filings, in the original German and unofficial translation, can be found here.

US asks if it should take back control over ICANN

The US government has asked the public whether it should reverse its 2016 action to relinquish oversight of the domain name system root.
“Should the IANA Stewardship Transition be unwound? If yes, why and how? If not, why not?”
That’s the surprisingly direct question posed, among many others, in a notice of inquiry (pdf) issued yesterday by the National Telecommunications and Information Administration.
The inquiry “is seeking comments and recommendations from all interested stakeholders on its international internet policy priorities for 2018 and beyond”. The deadline for comments is July 2.
The IANA transition, which happened in September 2016, saw the NTIA remove itself from the minor part it played, alongside meatier roles for ICANN and Verisign, in the old triumvirate of DNS root overseers.
At the handover, ICANN baked many of its previous promises to the US government into its bylaws instead, and handed oversight of itself over to the so-called Empowered Community, made up of internet stakeholders of all stripes.
The fact that the question is being asked at all would have been surprising not too long ago, but new NTIA chief David Redl and Secretary of Commerce Wilbur Ross expressed their willingness to look into a reversal as recently as January.
Back then Redl told Congresspeople, in response to questions raised primarily by Senator Ted Cruz during his confirmation process:

I am not aware of any specific proposals to reverse the IANA transition, but I am interested in exploring ways to achieve this goal. To that end, if I am confirmed I will recommend to Secretary Ross that we begin the process by convening a panel of experts to investigate options for unwinding the transition.

Cruz had objected to the transition largely based on his stated (albeit mistaken or disingenuous) belief that it gave China, Iran and a plethora of bad guys control over Americans’ freedom of speech, something that has manifestly failed to materialize.
But in the meantime another big issue has arisen — GDPR, the EU’s General Data Protection Regulation — which is in the process of eroding access rights to Whois data, beloved of US law enforcement and intellectual property interests.
NTIA is known to be strongly in favor of retaining access to this data to the greatest extent possible.
The notice of inquiry does not mention Whois or GDPR directly but it does ask several arguably related questions:

A. What are the challenges to the free flow of information online?
B. Which foreign laws and policies restrict the free flow of information online? What is the impact on U.S. companies and users in general?
C. Have courts in other countries issued internet-related judgments that apply national laws to the global internet? What have been the practical effects on U.S. companies of such judgements? What have the effects been on users?

NTIA’s statement announcing the inquiry prominently says that the agency is “working on” items such as “protecting the availability of WHOIS information”.
It also says it “has been a strong advocate for the multistakeholder approach to Internet governance and policy development”.
While GPDR and Whois are plainly high-priority concerns for NTIA, it’s beyond my ken how reversing the IANA transition would help at all.
GDPR is not ICANN policy, after all. It’s a European Union law that applies to all companies doing business in Europe.
Even if the US were to fully nationalize ICANN tomorrow and rewrite Whois policy to mandate the death penalty for any contracted party that refused to openly publish full Whois records, that would not make GDPR go away, it would probably just kick off a privacy trade war or mean that all US contracted parties would have to stop doing business in Europe.
That sounds like an extreme scenario, but Trump.
The NTIA’s inquiry closes July 2, so if you think the transition was a terrible idea or a wonderful idea, this is where to comment.

Can’t get enough GDPR? Come to my NamesCon panel

NamesCon Europe is being held in Valencia, Spain, this week, the first time the NamesCon branding has been applied to the old Domaining Europe show.
Starting Thursday, it’s a two-day conference — or three if you count the social events planned for Saturday — with a varied agenda focused on domain investors.
The keynote will be given by Akram Atallah, president of ICANN’s Global Domains Division, on a so-far unspecified topic.
There will be about 20 sessions in total, organized in a single track and covering topics such as valuation, monetization, drop-catching, web development and legal issues facing domainers.
Expect speakers from the likes of Donuts, Sedo, the new gTLDs .club and .global, and a bunch of companies I’ve never heard of (a fact I hope to rectify).
Staff from NamesCon owner GoDaddy also have a decent presence among the speakers.
Domaining Europe was sold to NamesCon earlier this year and there’s going to be a short “handover ceremony” at the end of the show, followed by a performance by a band whose lineup feature the conference’s new CEO.
I’ll be hosting a panel comprising Blacknight CEO Michele Neylon and German lawyer Thomas Rickert on the General Data Protection Regulation on Thursday just before lunch.
If you no longer wish me to tell you this, please click here. But if, as a domainer, you feel there are important GDPR issues that should be discussed at the session, feel free to leave a comment below or shoot me an email.
As usual with shows like this, a big part of the value is in the networking, and there’s plenty of opportunities for socializing scheduled, including a “Disco Party!” slated to end at 5am.
NamesCon Europe tickets are still available, priced now at €786.50 ($922).
Disclosure: I’m paying my own way to the show but have a complimentary press pass.

Court denies ICANN’s GDPR injunction against Tucows

A German court has refused ICANN’s request for a GDPR-related injunction against Tucows’ local subsidiary EPAG, throwing a key prong of ICANN’s new Whois policy into chaos.
EPAG now appears to be free to stop collecting contact information for each domain’s administrative and technical contacts — the standard Admin-C and Tech-C fields.
The ruling may even leave the door open for registrars to delete this data from their existing Whois databases, a huge blow to ICANN’s Whois compliance strategy.
According to an ICANN-provided English translation of the ruling (pdf), the Bonn judges (whose names are redacted — another win for GDPR?) decided that the Admin-C and Tech-C records are unnecessary, because they can be (and usually are) the same person as the registrant.
The judges said that if the additional contact names were needed, it would have historically been a condition of registration that three separate people’s data was required.
They wrote that this “is proof that any data beyond the domain holder — different from him — was not previously necessary”.
“Against the background of the principle of data minimization, the Chamber is unable to see why further data sets are needed in addition to the main person responsible,” they wrote.
Data minimization is a core principle of GDPR, the General Data Protection Regulation, which came into force in the EU less than a week ago. Tucows and ICANN have different interpretations on how it should be implemented.
The judges said that the registrant’s contact information should be sufficient for any criminal or security-related investigations, which had been one of ICANN’s key claims.
They also said that ICANN’s attempt to compare Whois to public trademark databases was irrelevant, as no international treaties govern Whois.
If the ruling stands, it means registries and registrar in at least Germany could no longer have to collect Admin-C and Tech-C contacts.
Tucows had also planned to delete this data for its existing EPAG registrations, but had put its plan on hold ahead of the judge’s ruling.
The ruling also gives added weight to the part of ICANN’s registry and registrar agreements that require contracted parties to abide by local laws.
That’s at the expense of the new Temporary Policy governing Whois introduced two weeks ago, which still requires Admin-C and Tech-C data collection.
There was no word in ICANN’s statement on the ruling last night as to the possibility of appealing.
But the org seized on the fact that the ruling does not directly state that EPAG would be breaching GDPR rules by collecting the data. General counsel John Jeffrey is quoted as saying:

While ICANN appreciates the prompt attention the Court paid to this matter, the Court’s ruling today did not provide the clarity that ICANN was seeking when it initiated the injunction proceedings. ICANN is continuing to pursue the ongoing discussions with the European Commission, and WP29 [the Article 29 Working Party], to gain further clarification of the GDPR as it relates to the integrity of WHOIS services.

Tucows has yet to issue a statement on the decision.
It may not be the last time ICANN resorts to the courts in order to seek clarity on matters related to GDPR and its new Temporary Policy.

Million-euro Tucows GDPR lawsuit may not be ICANN’s last

ICANN has filed a lawsuit against a Tucows subsidiary in Germany in an effort to resolve a disagreement about how new European privacy law should be interpreted, and according to ICANN’s top lawyer it may not be the last.
The organization said late Friday that it is taking local registrar EPAG to court in Bonn, asking that the registrar be forced to continue collecting administrative and technical contact information for its Whois database.
According to an English translation of the motion (pdf), and to conversations DI had with ICANN general counsel John Jeffrey and Global Domains Division president Akram Atallah over the weekend, ICANN also wants an injunction preventing Tucows from deleting these fields from current Whois records.
At its core is a disagreement about how the new General Data Protection Regulation should be interpreted.
Tucows plans to continue collecting the registrant’s personal information, but it sees no reason why it should also collect the Admin-C and Tech-C data.
Policy director Graeme Bunton argues that in the vast majority of cases the three records are identical, and in the cases they are not, the registrar has no direct contractual relationship with the named individuals and therefore no business storing their data.
ICANN counters that Admin-C and Tech-C are vital when domain owners need to be contacted about issues such as transfers or cyber-attacks and that the public interest demands such records are kept.
Its new Temporary Policy — which is now a binding contractual commitment on all registries and registrars — requires all this data to be collected, but Tucows feels complying with the policy would force it to break European law.
“Strategically, we wanted to make sure we don’t let the Whois and the pubic interest get harmed in a way that can’t be repaired,” Atallah said.
“The injunction is to actually stop any registrar from not collecting all the data and therefore providing the opportunity for the multistakeholder model to work and come up with a long-term plan for Whois,” he said. “”We don’t want to have a gap.”
Jeffrey said that the suit was also necessary because ICANN has not received sufficient GDPR guidance from data protection authorities in the EU.
EPAG is not the only registrar planning to make the controversial changes to data collection. There are at least two others, at least one of which is based in Germany, according to Jeffrey and Atallah.
The German ccTLD registry, DENIC, is not under ICANN contract but has also said it will no longer collect Admin-C and Tech-C data.
They may have all taken their lead from the playbook (pdf) of German industry group eco, which has been telling ICANN since at least January that admin and tech contacts should no longer be collected under GDPR.
That said, Tucows chief Elliot Noss is a vocal privacy advocate, so I’m not sure how much leading was required. Tucows was also a co-developer (pdf) of the eco model.
The injunction application was filed the same day GDPR came into effect, after eleventh-hour talks between ICANN legal and Tucows leadership including chief legal officer Bret Fausett hit an impasse.
Tucows has agreed to freeze its plan to delete its existing Admin-C and Tech-C stored data, however.
The suit has a nominal million-euro value attached, but I’m convinced ICANN (despite its budget crunch) is not interested in the money here.
It’s my sense that this may not be the last time we see ICANN sue in order to bring clarity to GDPR.
Recently, Jeffrey said that ICANN would not tolerate contracted parties refusing to collect full Whois data, and also that it would not tolerate it when they decline to hand the data over to parties with legitimate interests.
The German lawsuit does not address this second category of non-compliance.
But it seems almost certain to me that intellectual lawyers are just days or weeks away from starting to file compliance tickets with ICANN when they are refused access to this data, which could lead to additional litigation.
“Whether it would result in a lawsuit is yet to be determined,” Jeffrey told DI yesterday. “The normal course would be a compliance action. If people aren’t able to gain access to information they believe that they have a legitimate right to access they will file compliance complaints. Those compliance complaints will be evaluated.”
“If it’s a systematic decision not to provide that access, that would violate the [Temporary Policy],” he said. “If they indicated it was because of their interpretation of the law, then it could result in us asking questions of the DPAs or going to court if that’s the only action available.”
The injunction application is a “one-sided filing”, which Jeffrey tells me is a feature of German law that means the court could issue a ruling without requiring EPAG/Tucows to appear in court or even formally respond.
The dispute therefore could be resolved rather quickly — this week even — by the court of first instance, Jeffrey said, or it could be bounced up to the European Court of Justice.
Given how new GDPR is, and considering the wider implications, the latter option seems like a real possibility.

How all 33 European ccTLDs are handling GDPR

Happy GDPR Day everyone!
Today’s the day that the European Union’s not-quite-long-enough-awaited General Data Protection Regulation comes into effect, giving registries and registrars the world over the prospect of scary fines if they don’t keep their registrants’ Whois data private.
So I thought today would be the perfect day to summarize what each EU or European Economic Area ccTLD has said they are doing about GDPR as it pertains to Whois.
There are 33 such ccTLDs, arguably, and I’ve checked the public statements and web sites of each to hit the key changes they’ve announced.
Because ccTLDs are not governed by ICANN contracts, they had to figure out GDPR compliance for themselves (though some did take note of ICANN guidance).
So I’ve found there are differing interpretations of key points such as whether it’s kosher to continue to publish contact email addresses, and where the line between “natural persons” (ie humans) and “legal persons” (ie companies and other organizations) should be drawn.
Some have also been quite specific about when they will release private data to third parties with so-called “legitimate purposes”; others are more vague.
Note that some of the 33 do not appear to have published anything about GDPR. It’s possible this is because they didn’t need to make any changes. It’s also possible that I simply could not find the information because I’m rubbish.
I should also note that I did the majority of this research yesterday, so additional statements may have been made in the meantime.
Anyway, here’s the list, in alphabetical order.
Austria (.at)
In Austria, from last week public Whois records only show the domain name and technical information when the domain is owned by natural persons. Company-owned domains are unchanged. Any registrant can opt in to having their data published. Only verified “law enforcement agencies, lawyers or people who contact nic.at following domain disputes and who can prove that their rights have been infringed” are allowed to access full records.
Belgium (.be)
DNS.be has not been publishing personal info of natural person registrants, other than their email address, since 2000. As of last week, email addresses are not being published either. It’s also removed the contact name (though not the organization) for domains owned by legal persons. A web form is available to contact anonymized registrants.
Bulgaria (.bg)
There’s not currently any information on the registry web site to indicate any GDPR-related changes, at least in English, that I could find.
Croatia (.hr)
No info on GDPR to be found here either.
Cyprus (.cy)
Ditto.
Czechia/Czech Republic (.cz)
Nic.cz has new rules (pdf) coming in tomorrow that specify which Whois fields will or may be “hidden”, but the English version of the document is too confusing for me to follow. It appears as if plenty of contact information will be masked, and that the registry will only make it available to those who contact it directly with a good enough reason (and it may charge for access). It may also release historical records to those with legitimate purposes.
Denmark (.dk)
Remarkably, there will be NO CHANGE to Whois in .dk after tomorrow, according to an article published on the registry’s web site today. DIFO, the registry, is subject to a Danish law that makes publication of Whois mandatory so, the company said, “we will continue to publish the information – for the benefit of those who need to know who is behind a given domain name. Regardless of whether it is because you want to protect your brand, investigate a crime, do research or just satisfy your curiosity.” Wow!
European Union (.eu)
Eurid’s current Whois policy (pdf) states that only the email address of natural persons will be published publicly. Registrants get the option from their registrars to have this address anonymized. Private data can be released to those who show they have a legitimate interest in accessing it.
Estonia (.ee)
The Estonian Internet Foundation Council approved its GDPR changes (pdf) back in March. They say that no personal information on natural persons will be published, though it appears there will be a way to get in contact with them via the registry itself.
Finland (.fi)
The Finnish registry, FICORA, is a governmental entity that has published remarkably little about GDPR on its site. Its Whois shows the name of the registrant, even when they’re a natural person. Registrants can also opt in to reveal more information about themselves.
France (.fr)
Afnic didn’t have to do much to comply with RGPD (tut!) as it has been hiding the personal info of natural-person registrants since it started allowing them to register .fr names back in 2006. Likewise, it already has a procedure to enable the likes of trademark owners to get their hands on contact info in the event of a dispute, which involves filling out a form (pdf) and promising to only use the data acquired for the purposes specified.
Germany (.de)
DENIC, Europe’s largest ccTLD registry said a few months back that it would expunge personal data from its public Whois and implement a semi-automated system for requesting full records. It’s also adding two “non-personalized” contact email addresses for general and technical inquiries, which will be managed by the registrar in question.
Greece (.gr)
I couldn’t find any GDPR-related information on the registry web site, but its Whois appears to not output contact details for any registrant anyway.
Hungary (.hu)
Currently outputs “private registrant” as the registrant’s name when they’re a natural person, along with a technical contact email and no other personal information. Legal persons get their full contact info published. It’s not entirely clear how recent this policy is.
Iceland (.is)
Iceland’s ISNIC is one of the ccTLD registries to announce that it will continue to publish registrants’ email addresses, though no other contact info, until it is told to stop. In a somewhat defiant post last month, the registry said that GDPR as applied to Whois “will lead to less transparency in domain registrations and less trust in the domain registration system in general”.
Ireland (.ie)
IEDR will not publish contact information for any registrant, though it will publish their name if they’re a legal person. It will only disclose personal information to law enforcement, under court order, for technical matters, or to help a dispute resolution partner resolve a cybersquatting claim.
Italy (.it)
The current version of Registro.it’s Whois policy, dated September 2016, says it will publish all contact information over port 43 and a subset of some contact info (including phone and email) over the web query tool. There’s no mention I could find on its site of GDPR-related changes, though its 2016 policy acknowledges some might be needed.
Latvia (.lv)
Under its post-GDPR policy (pdf), Nic.lv will not publish any personal info about natural persons in its public Whois, and only law enforcement and the government can request the records. Legal-person registrants continue to have their full contact data published.
Liechtenstein (.li)
Liechtenstein is managed by Switzerland’s SWITCH and appears to have the same policies.
Lithuania (.lt)
DomReg’s new privacy policy (pdf) gives natural persons an opt-in to have their personal data published, but otherwise it will all be private. There’s an email-forwarding option. Lawyers with claims against registrants can pay the registry for the Whois record if the registrant has not responded to their forwarded emails within 15 days.
Luxembourg (.lu)
.lu registry RESTENA Foundation said it will cut all personal information for natural-person registrants and make a web-based form available for contact purposes. There will be an opt-in for those who want their data published at a later date. Legal persons continue to have their data published. The registry will make current and historical records available for those with legit purposes, and will create automated blanket access system for national authorities that require regular access.
Malta (.mt)
NIC(Malta)’s current Whois policy, which is only six months old, allows any registrant to opt out of having their personal data published in Whois, but appears to require than a “Administrative Agent” be appointed to take their place in the public database. There’s no info on its web site about any upcoming changes due to GDPR.
Netherlands (.nl)
SIDN explains in a recent paper (pdf) that it didn’t have to make many changes to its Whois service because personal information was already pretty much redacted. The biggest change appears to be more throttling of Whois queries applied to registrars when they’re querying domains they don’t already sponsor.
Norway (.no)
Norid said this week that it will publish the email address of private individual registrants, and full contact info for companies. It’s also the only European ccTLD I’m aware of to have a third class of registrant, the sole proprietorship, which will also see their organization names and numbers published. There does not appear to be an in-house email anonymization or forwarding service, for which Norid encourages registrants to look elsewhere.
Poland (.pl)
NASK has no GDPR related info on its web site, but its evidently quite old Whois policy states that the private information of individuals is not published.
Portugal (.pt)
DNS.pt has a comprehensive set of documents on its site explaining its pre- and post-GDPR policies. From today, natural-person registrants are given the option to provide their “informed, willing, and express consent” to having their data published. If they don’t give consent, it will be redacted from public records and email addresses may be replaced with an anonymized address. This is not available to legal entities. ARBITRARE, a local arbitration center tasked with handle IP disputes, will be able to have access to full records.
Romania (.ro)
RoTLD said yesterday that it would no longer publish private information of individuals, but that it may release such data to “carefully verified” third parties with legitimate interests. It also encouraged registrants to use non-personally-indentifying email addresses if they wish to have a further degree of privacy.
Slovakia (.sk)
SKNIC, now owned by UK-based CentralNic, has an interesting definition of the type of natural person you have to be to have your data protected — a “natural person non-enterpreneur” — according to its helpfully redlined policy update (pdf), suggesting that offering commercial services might void your right to natural-person status. (UPDATE: SKNIC tells me that “natural person–entrepreneur is a legal definition of a specific version of legal person” in Slovakia). There’s a carve-out that allows the registry to provide private data to third parties with legal claims, or to its cybersquatting dispute handler.
Slovenia (.si)
Register.si said this week that it will shortly publish its post-GDPR privacy policy, but it does not appear to have yet done so.
Spain (.es)
I could find no GDPR-related information on the Dominios.es site.
Sweden (.se)
IIS has not published the private fields of Whois records for natural persons since 2013. From today, it will also redact the contact name and email address from the records of legal-person registrants, as it may be considered “personal” data under the law.
Switzerland (.ch)
I don’t think GDPR actually applies to Switzerland, which is not an EEA member, but the .ch registry, SWITCH, also runs Liechtenstein’s .li, so I’m including it here. SWITCH says on both of its sites that it is required by Swiss law to publish Whois records, though they’re subject to an acceptable use policy that includes throttling. When I attempted to do a single Whois query via the SWITCH site today I was told I had already exceeded my quota. Shrug.
United Kingdom (.uk)
UK registry Nominet has long had a two-tier Whois, where private individuals do not have their contact information published in the public Whois. But as of this week it has started redacting all registrant contact information. It’s also going to be offering a paid-for searchable Whois service and a free data request service with a one-day turnaround.

Sedo’s cunning GDPR workaround

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”

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.