Latest news of the domain name industry

Recent Posts

Facebook clashes with registrars after massive private data request

Kevin Murphy, July 26, 2018, Domain Policy

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 rejected Israel as meeting venue due to threat from Gaza and Iran

Kevin Murphy, July 24, 2018, Domain Policy

Israel was rejected as a possible venue for one of ICANN’s 2020 public meetings due to concerns about Middle East violence, DI has learned.

A proposal to host a meeting in Tel Aviv was discounted, with ICANN staff telling the board of directors that it is “not suitable for an ICANN meeting due to security concerns.”

“With the proximity to the Gaza strip and the escalation of an Iran/Israel conflict we feel it is best to avoid this region,” the board was told at its meeting last month.

Cost was also cited as a reason to avoid the city, though there was no mention of visa problems (which I imagine would be a concern for many community members).

Tel Aviv, which was proposed by a local registrar, was among five possible venues for ICANN’s mid-2020 Policy Forum that were rejected in favor of Kuala Lumpur, Malaysia.

The others, which all came from the Asia-Pacific region per ICANN’s regional rotation policy, were Macau (China), Auckland (New Zealand), Sydney (Australia) and Adelaide (Australia).

It also appears that locations proposed by community members seem to get preference over those proposed by venues, such as convention centers, themselves.

The alternative proposals have come to light because ICANN neglected to redact confidential information from a set of board briefing documents (pdf) published last week. The unredacted information reads:

Other Hosting Proposals Received:

  • Macao, China: Yannis Li (DotAsia), Bonnie Chun (HKIRC) and Paco Xiao (MONIC) submitted a proposal. However, we found this location to be more expensive than Kuala Lumpur.
  • Auckland, New Zealand: Jordan Carter from InternetNZ submitted a proposal. However, we found this location to be more expensive than Kuala Lumpur.
  • Tel-Aviv, Israel: Yoav Keren from Domain The Net Technologies Ltd. submitted a proposal. However, we found this location to be more expensive than Kuala Lumpur and not suitable for an ICANN meeting due to security concerns. With the proximity to the Gaza strip and the escalation of an Iran/Israel conflict we feel it is best to avoid this region.
  • Sydney, Australia: Joanne Muscat from Business Events Sydney submitted a hosting proposal. However, this location was proposed by the meeting venue not a community member and is more expensive than Kuala Lumpur.
  • Adelaide, Australia: Jacqui Lloyd from Adelaide Convention Bureau submitted a proposal. However, this location was proposed by the meeting venue not a community member and is more expensive than Kuala Lumpur.

The same document also reveals that proposals to host ICANN’s 2020 Latin America meeting — which was ultimately awarded to Cancun, Mexico — were received from Lima, Peru and Monterrey, Mexico.

Monterrey was also rejected due to unspecified “security and accessibility concerns”.

The US State Department currently classifies Monterrey with a “Level 3 — Reconsider Travel” status, whereas Cancun has a lower “Level 2 — Exercise Increased Caution” status.

The unredacted text reads:

  • Lima, Peru: Johnny Laureano from the Asociación de Usuarios de Internet del Perú submitted a hosting proposal. The proposed convention center is still in the process of selecting a management company. The host has not followed through with a valid proposal.
  • Monterrey, Mexico: Monica Trevino from Cintermex Convention Center submitted a hosting proposal. The location was not suitable for an ICANN meeting due to security and accessibility concerns.

Paris, Budapest, The Hague, and Geneva — some of which had been scouted by ICANN as opposed to being proposed by third parties — were rejected as venues for the 2020 European meeting.

The unredacted document reads:

  • Paris, France: Laure Filloux from VIPARIS Palais des Congrès de Paris submitted a hosting proposal. However, this location was proposed by the meeting venue not a community member and is more expensive than Hamburg.
  • Budapest, Hungary: Balazs Szucs from HungExpo Budapest submitted a hosting proposal. This location was proposed by the meeting venue and was not suitable for an ICANN meeting.
  • The Hague, Netherlands: Identified by the ICANN meetings team as a possible location was also considered. The location was more expensive than Hamburg.
  • Geneva, Switzerland: Identified by the ICANN meetings team as a possible location was also considered. The location was more expensive than Hamburg.

The European meeting will instead take place in Hamburg at the invitation of local trade group eco and the city council.

The cost of each successful proposal, which seems to be the clincher in each case, is redacted in these documents.

ICANN’s GDPR lawsuit bounced up to appeals court

Kevin Murphy, July 24, 2018, Domain Policy

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?

Kevin Murphy, July 24, 2018, Domain Policy

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

Kevin Murphy, July 16, 2018, Domain Policy

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.