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ICANN board talking GDPR “litigation”

Kevin Murphy, May 21, 2018, Domain Policy

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

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

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

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

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

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

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

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

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

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

Failure to launch: 10 years-old gTLDs that are still dormant

Over six years after the last new gTLD application window closed, more than one in 10 new gTLDs have yet to launch, even though some have been delegated for over four years.

Once you filter out duplicates, withdrawals and terminations from the original 1,930 applications, there were a maximum of roughly 1,300 potential new gTLDs from the 2012 round.

But, by my calculations, 144 of those have yet to even get around to their sunrise period. Most of those haven’t even filed their launch plans with ICANN yet.

Here’s 10 from that list I’ve picked based on how interesting they appear to me, in no particular order.

Yes, DI is doing listicles now. Hate-mail to the usual address.

.forum

This one’s owned by Jay Westerdal’s Top Level Spectrum, the same company behind .feedback, .realty and others. I quite like the potential of this string — the internet is chock-full of forums due to the easy availability of open-source forum software — but so far nobody’s gotten to register one. It was delegated back in June 2015 and doesn’t have a published launch plan as yet. An FAQ reading just saying “Jay was here !!!!! Test deploy..delete me later…” has been up on its site since at least last September. TLS is also sitting on .contact and .pid (for “personal ID”) with no launch dates in sight.

.scholarships

Owned by Scholarships.com, there’s a whiff of the defensive about this one. It’s been in the root since March 2015 but its site states the registry “is still finishing launch plans and will provide updates as they become available”. Scholarships.com is a site that connects would-be higher education students to potential sources of funding. It’s difficult to imagine many ways the matching gTLD could possibly help in that mission.

.giving

JustGiving, the UK-based charity campaign aggregator, won this gTLD and had it delegated in August 2015, but seemingly still hasn’t figured out what it wants to do with it. It’s not a dot-brand, so it’s presumably mulling over ways to give .giving domains to fundraisers in a way that does not compromise credibility. Whatever its plans, it’s taking its sweet time over them.

.cancerresearch

This is a weird one. Delegated four years ago, the Australian Cancer Research Foundation rather quickly went live with a bunch of interlinked .cancerresearch web sites, using its contractually permitted allotment of promotional domains. Contractually, it’s not a dot-brand, but it’s basically acting like one, having never actually given ICANN any info about sunrise, eligibility, trademark claims, general availability, etc. Technically, it’s still pre-launch, and I can’t see any reason why it would want to budge from that status. Huge loophole in the ICANN rules?

.beauty

Another whiff of gaming here. International woman-shaming powerhouse L’Oreal still has no announced plans to launch .beauty, .skin or .hair, which it had originally wanted to run as so-called “closed generics” (presumably to keep the keywords out of the hands of competitors). Of its small portfolio of generic gTLDs, delegated in 2016, it has actually launched .makeup already, with a $6,000 retail price and a strategy seemingly based on registry-owned domains matching the names of makeup-focused social media influencers. At least it’s actually selling names, even if nobody’s bought one yet.

.budapest

One of three city TLDs that were delegated back in 2014 but have yet to start selling domains. MMX is to run it in partnership with the local government of the Hungarian city, if it ever gets off the ground. Madrid (.madrid) and Zurich (.zuerich) have both also yet to roll out, although Zurich has settled on early 2019 for its launch.

.fan

Regular DI readers won’t be surprised to see this one on the list. In what may turn out to be a shocking waste of money, .fans registry Asiamix Digital acquired the singular .fan from Donuts back in 2015 and promptly let it sit idle for the next three years. Currently, with .fans turning out to be a flop, Asiamix has money troubles and I wouldn’t be surprised to see it under new ownership before too long. It’s not a terrible string, so there’s some potential there.

.ком, etc

.ком is one of 11 internationalized domain name transliterations of .com — .कॉम, .ком, .点看, .คอม, .नेट, .닷컴, .大拿, .닷넷, .コム, .كوم and .קוֹם — that Verisign had delegated back in 2015. To date, only the Japanese .コム has launched, and the registry reportedly arsed it up quite badly. Records show .コム peaked at over 28,000 names and sits at fewer than 7,000 today. None of the remaining IDNs have launch dates attached.

Anything owned by Google or Amazon

When it comes to sitting on dormant gTLDs, you can’t top Google and Amazon for sheer numbers. Google has 19 strings in pre-launch states right now, while Amazon has a whopping 34. Amazon is letting the likes of .free, .wow, .now, .deal, .save and .secure sit idle, while Google is still stroking its chin on the likes of .eat, .meme, .fly and .channel. At the snail’s pace these companies roll out gTLDs, I wouldn’t be surprised if some of these strings never hit the market.

.bom

Portuguese for “.good”, .bom was delegated to local ccTLD registry Nic.br in 2015 but has no published launch dates and no content on its nic.bom registry web site. I’d say more, but I expect a certain prolific DI commenter could do a better job of it, so I’ll turn it over to him

Donuts freezes .place gTLD ahead of new geofencing rules

Donuts has taken its .place gTLD temporarily off the market as it repurposes the space as a restricted zone for “geofencing” related uses.

That’s right, the biggest gTLD portfolio play and historically staunch advocate of open gTLDs is actually planning to introduce eligibility requirements into a currently unrestricted TLD.

Details are light ahead of a formal announcement, but I’m told all new .place registrants will have to agree to use their domains for geofencing purposes.

This looks a bit like it could be a taste of the “innovation” we were all promised from the new gTLD program.

Geofencing refers to systems that divide the world up into fenced-off virtual parcels of land based on GPS coordinates, enabling location-based services.

It’s an area Donuts has been looking at for a while, having invested in early-stage geofencing company GeoFrenzy, since rebranded as Geo.Network, two years ago.

While Donuts puts its new .place model in place — ICANN and registrars have been given the heads-up — it should not be possible to register any new .place domains.

Major registrars such as GoDaddy, Namecheap, Uniregistry and Donuts-owned Name.com were not returning results for .place domains on their storefronts when I checked over the weekend.

Other registrars did still appear to be offering the names, but I did not attempt to register one to check whether the sale would complete.

I gather that the new eligibility requirements will not apply retroactively, so anyone who currently owns a .place name will get to keep it on an unrestricted basis.

There are around 7,000 active .place domains currently.

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.

ICANN approves messy, unfinished Whois policy

Kevin Murphy, May 18, 2018, Domain Policy

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

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

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

What’s in public Whois?

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

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

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

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

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

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

What about privacy services?

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

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

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

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

So how do you contact registrants?

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

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

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

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

Who gets to see the private data?

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

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

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

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

This is what the policy says:

Registrar and Registry Operator MUST provide reasonable access to Personal Data in Registration Data to third parties on the basis of a legitimate interests pursued by the third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the Registered Name Holder or data subject

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

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

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

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

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

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

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

How will transfers work?

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

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

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

What happens next?

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

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

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

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

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

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

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

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

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

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