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ICANN denies it’s in bed with trademark lawyers

Kevin Murphy, October 21, 2018, Domain Policy

ICANN chair Cherine Chalaby has strongly denied claims from non-commercial stakeholders that its attitude to Whois reform is “biased” in favour of “special interests” such as trademark lawyers.

In a remarkably fast reply (pdf) to a scathing October 17 letter (pdf) from the current and incoming chairs of the Non-Commercial Stakeholders Group, Chalaby dismissed several of the NCSG’s claims of bias as “not true”.

The NCSG letter paints ICANN’s efforts to bring Whois policy into line with the General Data Protection Regulation as rather an effort to allow IP owners to avoid GDPR altogether.

It even suggests that ICANN may be veering into content regulation — something it has repeatedly and specifically disavowed — by referring to how Whois may be used to combat “fake news”.

The “demonstrated intention of ICANN org has been to ensure the unrestrained and unlawful access to personal data demanded by special interest groups”, the NCSG claimed.

It believes this primarily due to ICANN’s efforts to support the idea of a “unified access model” — a way for third parties with “legitimate interests” to get access to private Whois data.

ICANN has produced a couple of high-level framework documents for such a model, and CEO Goran Marby has posted articles playing up the negative effects of an inaccessible Whois.

But Marby has since insisted that a unified access model is still very much an “if”, entirely dependent on whether the community, in the form of the Whois EPDP working group, decides there should be one.

That message was reiterated in Chalaby’s new letter to the NCSG.

The conversation on whether to adopt such a model must continue, but the outcomes of those discussions are for the community to decide. We expect that the community, using the bottom-up multistakeholder model, will take into account all stakeholders’ views and concerns.

He denied that coordinating Whois data is equivalent to content regulation, saying it falls squarely within ICANN’s mandate.

“ICANN’s mission related to ‘access to’ this data has always encompassed lawful third-party access and use, including for purposes that may not fall within ICANN’s mission,” he wrote.

The exchange of letters comes as parties on the other side of the Whois debate also lobby ICANN and its governmental advisors over the need for Whois access.

Here’s what ICANN’s boss is saying about Whois access now

Kevin Murphy, October 4, 2018, Domain Policy

Should ICANN become the sole source for looking up private domain registrant data? That’s one of the options for the post-GDPR world of Whois currently being mulled over on Waterfront Drive.

ICANN CEO Goran Marby laid out some of ICANN’s current thinking on the future of Whois last week at an occasionally combative meeting in Los Angeles.

One idea would see ICANN act as a centralized gatekeeper for all Whois data. Another could risk ICANN becoming much more tightly controlled by governments.

I’ve listened to the recordings, read the transcripts, chatted to participants, and I’m going to attempt to summarize what I believe is the current state of play.

As regular DI readers know, post-GDPR Whois policy is currently being debated to a tight deadline by an Expedited Policy Development Process working group.

The work has been a tough slog, and there seems to be little hope of the EPDP closing all of its outstanding issues before its first conclusions are due under three weeks from now.

One of the outstanding issues not yet addressed in any depth by the group is the potential creation of a “unified access model” — a standardized way cops, trademark owners, cybersecurity professionals and others could look at the same Whois data they could look at just a few months ago.

While the EPDP has carried on deferring discussion of such a model, ICANN Org has in parallel been beavering away trying to figure out whether it’s even going to be legally possible under the new European privacy law to open up Whois data to the people who want to see it, and it’s come up with some potentially game-changing ideas.

After weeks of conference calls, the EPDP working group — made up of 30-odd volunteers from all sections of the ICANN community — met in LA for three days last week to get down to some intensive face-to-face arguments.

I gather the meeting was somewhat productive, but it was jolted by the publication of an ICANN blog post in which Marby attempted to update the community on ICANN’s latest efforts to get clarity on how GDPR legally interacts with Whois.

Marby wrote that ICANN “wants to understand whether there are opportunities for ICANN, beyond its role as one of the ‘controllers’ with respect to WHOIS or its contractual enforcement role, to be acknowledged under the law as the coordinating authority of the WHOIS system.”

What did ICANN mean by this? While “controller” is a term of art defined in mind-numbing detail by the GDPR, “coordinating authority” is not. So ICANN’s blog post was open to interpretation.

It turns out I was not the only person confused by the post, and on Tuesday afternoon last week somebody from the EPDP team collared Marby in the corridor at ICANN HQ and dragged him into the meeting room to explain himself.

He talked with them for about an hour, but some attendees were still nonplussed — some sounded downright angry — after he left the room.

This is what I gleaned from his words.

No End-Runs

First off, Marby was at pains to point out, repeatedly, that ICANN is not trying to bypass the community’s Whois work.

It’s up to the community — currently the EPDP working group, and in a few weeks the rest of you — to decide whether there should be a unified access model for Whois, he explained.

What ICANN Org is doing is trying to figure out is whether a unified access model would even be legal under GDPR and how it could be implemented if it is legal, he said.

“If the community decides we should have a policy about a unified access model, that’s your decision,” he told the group. “We are trying to figure out the legal avenues if it’s actually possible.”

He talked about this to persons unknown at the European Commission in Brussels last month.

Whatever ICANN comes up with would merely be one input to the community’s work, he said. If it discovers that a unified access model would be totally illegal, it will tell the community as much.

Marby said ICANN is looking for “a legal framework for how can we diminish the contracted parties’ legal responsibility” when it comes to GDPR.

So far, it’s come up with three broad ideas about how this could happen.

The Certification Body Idea

GDPR sections 40 to 43 talk about the concepts of “codes of conduct” and “certification bodies”.

It’s possible that ICANN was referring to the possibility of itself becoming a certification body when it blogged about being a “coordinating authority”. Marby, during the EPDP meeting, unhelpfully used the term “accreditation house”.

These hypothetical entities (as far as I know none yet exist) would be approved by either national data protection authorities or the pan-EU European Data Protection Board to administer certification schemes for companies that broadly fall into the same category of data processing businesses.

It seems to be tailor-made for ICANN (though it wasn’t), which already has accreditation of registries and registrars as one of its primary activities.

But this legal avenue does not appear to be a slam-dunk. ICANN would presumably have to persuade a DPA or two, or the EDPB, that giving third parties managed access to citizens’ private data is a good thing.

You’d think that DPAs would be dead against such an idea, but the EU members of ICANN’s Governmental Advisory Committee have put their names to advice stating that Whois should remain accessible under certain circumstances, so it’s not impossible they could see it ICANN’s way.

The C.R.A.P. Idea

Marby’s second idea for taking some of the GDPR burden off the shoulders of contracted parties is to basically make ICANN a proxy, or man-in-the-middle, for Whois queries.

“What would happen if ICANN Org legally is the only place you can ask a question through?” he said. “And the only ones that the contracted parties actually can answer a question to would be ICANN Org? Would that move the legal responsibility away from the contracted parties to ICANN Org?”

In many ways, this is typical domain industry tactics — if there’s a rule you don’t want to follow, pass it off to a proxy.

This model was referred to during the session by EPDP members as the “hub and spoke” or “starfish”. I think the starfish reference might have been a joke.

Marby, in a jocular callback to the “Calzone” and “Cannoli” Whois proposals briefly debated in the community earlier this year, said that this model had a secret ICANN-internal code-name that is “something to do with food”.

Because whenever I’ve tried to coin a phrase in the past it has never stuck, I figure this time I may as well go balls-out and call it the “Cuisine-Related Access Plan” for now, if for no other reason than the acronym will briefly annoy some readers.

Despite the name I’ve given it, I don’t necessarily dislike the idea.

It seems to be inspired by, or at least informed by, side-channel communications between Marby and the Intellectual Property Constituency and Business Constituency, which are both no doubt mightily pissed off that the EPDP has so far proven surprisingly resilient to their attempts to get Whois access into the policy discussions as early as possible.

Two months ago, a few influential IP lawyers proposed to Marby (pdf) a centralized Whois model in which registrars collect data from registrants then pass it off to ICANN, which would be responsible for deciding who gets to see it.

Forget “thin” versus “thick” Whois — this one would be positively, arguably dangerously, obese. Contracted parties would be relegated to “processors” of private data under GDPR, with ICANN the sole “controller”.

Benefits of this would include, these lawyers said, reducing contracted parties’ exposure to GDPR.

It’s pretty obvious why the IP lobby would prefer this — ICANN is generally much more amenable to its demands than your typical registry or registrar, and it would very probably be easier to squeeze data out of ICANN.

While Marby specifically acknowledged that ICANN has taken this suggestion as one of its inputs — and has run it by the DPAs — he stopped well short of fully endorsing it during last week’s meeting in LA.

He seemed to instead describe a system whereby ICANN acts as the gatekeeper to the data, but the data is still stored and controlled at the registry or registrar, saying: “We open a window for access to the data so the data is still at the contracted parties because they use that data for other reasons as well”.

The Insane Idea

The third option, which Marby seemed to characterize as the least “sane” of the three, would be to have Whois access recognized by law as a public interest, enabling the Whois ecosystem to basically ignore GDPR.

Remember, back on on GDPR Day, I told you about how the .dk ccTLD registry is carrying on publishing Whois as normal because a Danish law specifically forces it to?

Marby’s third option seems to be a little along those lines. He specifically referred to Denmark and Finland (which appears to have a similar rule in place) during the LA session.

If I understand correctly, it seems there’d have to be some kind of “legal action” in the EU — either legislation in a member state, or perhaps something a little less weighty — that specifically permitted or mandated the publication of otherwise private Whois data in gTLD domains.

Marby offered trademark databases and telephone directories as examples of data sets that appear to be exempt from GDPR protection due to preexisting legislation.

One problem with this third idea, some say, is that it could bring ICANN policy under the direct jurisdiction of a single nation state, something that it had with the US government for the best part of two decades and fought hard to shake off.

If ICANN was given carte blanche to evade GDPR by a piece of legislation in, say, Lithuania, would not ICANN and its global stakeholders forever be slaves to the whims of the Lithuanian legislature?

And what if that US bill granting IP interests their Whois wet dream passes onto the statute books and ICANN finds itself trapped in a jurisdictional clusterfuck?

Oh, my.

Fatuous Conclusion For The Lovely People Who Generously Bothered To Read To The End

I’m not a lawyer, so I don’t pretend to have a comprehensive understanding of any of this, but to be honest I’m not convinced the lawyers do either.

If you think you do, call me. I want to hear from you. I’m “domainincite” on Skype. Cheers.

Mediators hired as Whois reformers butt heads

Kevin Murphy, September 17, 2018, Domain Policy

ICANN has hired professional mediators to help resolve strong disagreements in the working group tasked with reforming Whois for the post-GDPR world.

Kurt Pritz, chair of the Expedited Policy Development Process for Whois, last week told the group that ICANN has drafted in the Consensus Building Institute, with which it has worked before, to help “narrow issues and reach consensus”.

Three CBI mediators will brief the EPDP group today, and join them when the WG meets face-to-face for the first time at a three-day session in Los Angeles later this month.

Their goal is not to secure any particular outcome, but to help the disparate viewpoints find common ground, Pritz told the group.

It’s been Pritz’s intention to get the mediators in since day one — he knew in advance how divisive Whois policy is — but it’s taken until now to get the contracts signed.

The EPDP WG’s job is to create a new, privacy-conscious, consensus Whois policy that will apply to all gTLD registries and registrars. Its output will replace ICANN’s post-GDPR Temporary Specification for Registration Data, which in turn replaced the longstanding Whois policy attached to all ICANN registry and registrar contracts.

Since the working group first convened in early August — about 500 emails and 24 hours of painful teleconferences ago — common ground has been hard to find, and in fact the EPDP group did not even attempt to find consensus for the first several weeks of discussions.

Instead, they worked on its first deliverable, which was finalized last week, a “triage report” that sought to compile each faction‘s opinion of each section of ICANN’s Temp Spec.

The idea seemed sensible at the time, but with hindsight it’s arguable whether this was the best use of the group’s time.

The expectation, I believe, was that opposing factions would at least agree on some sections of text, which could then be safely removed from future debate.

But what emerged instead was this, a matrix of disagreement in which no part of the Temp Spec did not have have at least one group in opposition: Triage Table

The table is potentially misleading, however. Because groups were presented with a binary yes/no option for each part of the spec, “no” votes were sometimes recorded over minor language quibbles where in fact there was agreement in principle.

By restricting the first few weeks of conversation to the language of the Temp Spec, the debate was arguably prematurely hamstrung, causing precious minutes to trickle away.

And time is important — the EPDP is supposed to deliver its consensus-based Initial Report to the ICANN 63 meeting in Barcelona about five weeks from now.

That’s going to be tough.

What’s becoming increasingly clear to me from the post-triage talks is that the WG’s task could be seen as not much less than a wholesale, ground-up, reinvention of the Whois wheel, recreated with GDPR as the legal framework.

Who is Whois for?

Discussions so far have been quite mind-expanding, forcing some fundamental rethinking of long-held, easy assumptions, at least for this lurker. Here’s an example.

One of the fundamental pillars of GDPR is the notion of “purposes”. Companies that collect private data on individuals have to do so only with specific, enumerated purposes in mind.

The WG has started by discussing registrars. What purpose does a registrar have when it collects Whois data from its registrants?

None whatsoever, it was claimed.

“To execute the contract between the registrant and the registrar, it’s really not necessary for registrars to collect any of this information,” GoDaddy head of policy James Bladel, representing registrars, told the group on its latest call Thursday.

Registrars collect data on their customers (not just contact data, but also stuff like credit card details) for billing and support purposes, but this is not the same as Whois data. It’s stored separately and never published anywhere. While covered by GDPR, it’s not covered by Whois policy.

Whois data is only collected by registrars for third parties’ purposes, whether that third party be a registry, ICANN, a data escrow agent, a cop, or an intellectual property enforcer.

“Other than a few elements such as domain name servers, there is nothing that is collected in Whois that is needed for the registrar to do their business,” At-Large Advisory Committee chair Alan Greenberg told the WG. “All of them are being collected for their availability to third parties, should they need it.”

While this may seem like a trivial distinction, drawing a hard line between the purposes of registries, registrars and ICANN itself on the one hand and law enforcement, cybersecurity and IP lawyers on the other is one of the few pieces of concrete advice ICANN has received from European data protection regulators.

There’s by no means unanimous agreement that the registrars’ position is correct, but it’s this kind of back-to-basics discussion that makes me feel it’s very unlikely that the EPDP is going to be able to produce an Initial Report with anything more than middling consensus by the October deadline.

I may be overly pessimistic, but (mediators or no mediators) I expect its output will be weighted more towards outlining and soliciting public comment on areas of disagreement than consent.

And the WG has not yet even looked in depth at the far thornier issue of “access” — the policy governing when third parties such as IP lawyers will be able to see redacted Whois data.

Parties on the pro-access side of the WG have been champing at the bit to bring access into the debate at every opportunity, but have been

Hey, look, a squirrel!

The WG has also been beset by its fair share of distractions, petty squabbles and internal power struggles.

The issues of “alternates” — people appointed by the various constituencies to sit in on the WG sessions when the principles are unavailable — caused some gnashing of teeth, first over their mailing list and teleconference privileges and then over how much access they should get to the upcoming LA meeting.

Debates about GDPR training — which some say should have been a prerequisite to WG participation — have also emerged, after claims that not every participant appeared clued-in as to what the law actually requires. After ICANN offered a brief third-party course, there were complaints that it was inadequate.

Most recently, prickly Iranian GAC rep Kavouss Arasteh last week filed a formal Ombudsman complaint over a throwaway god-themed pun made by Non-Com Milton Mueller, and subsequently defended by fellow non-resident Iranian Farzaneh Badii, in the Adobe Connect chat room at the September 6 meeting.

Mueller has been asked to apologize.

Beginning of the end for DomainTools? Court orders it to scrub Whois records

Kevin Murphy, September 13, 2018, Domain Registries

DomainTools has been temporarily banned from collecting and publishing the Whois records of all .nz domains.

A Washington court yesterday handed down a preliminary injunction against the company, after New Zealand’s Domain Name Commission sued it in July for scraping and republishing its Whois in violation of its terms of service.

Notably — especially if you’re involved in the ongoing Whois reform debate — Judge Robert Lasnik’s scathing order (pdf) rubbished DomainTools’ claims that its historical Whois service provides a public interest benefit that outweighs the privacy interests of .nz registrants.

The ruling by its own admission also potentially opens the floodgates for other registries and registrars to obtain injunctions against DomainTools for the own customers.

DomainTools has been “enjoined from accessing the .nz register while DomainTools’ limited license remains revoked and/or publishing any .nz register data DomainTools had stored or compiled in its own databases”.

DNC, the policy body that oversees .nz registry InternetNZ, had alleged that DomainTools had created a “secondary or shadow register” by bulk-downloading Whois records.

Since mid-2016, each .nz Whois record has contained a notice that such behavior is prohibited, and Lasnik agreed that DomainTools must surely have been aware of this.

Lasnik further agreed with DNC that DomainTools’ service is “sabotaging” its efforts to bring more privacy protection to .nz customers; since November last year it has offered individuals the ability to opt out of having their private data published, an offer 23,000 people have taken up.

That was enough for the judge to conclude that DNC’s case had met the “irreparable harm” test required for an injunction.

He was less impressed with DomainTools’ argument that implementing the injunction would take many months and cost it up to $3.5 million.

“Defendant can presumably filter the .nz data using relatively simple database tools,” he wrote, ordering DNC to post a “nominal” $1,000 bond to cover DT’s potential losses.

Lasnik also said the public interest would be better served by permitting registrant privacy than by serving the interests of DomainTools’ cybsecurity and law enforcement customers:

defendant argues that the products it creates from its meticulously collected register data are critical cybersecurity resources and that the public interest would be harmed if the reports provided to government, financial, and law enforcement entities were incomplete because the .nz data were excised. The .nz register is comparatively small, however (approximately 710,000 domains compared with over 135,000,000 .com domains), and the defendant and its customers can access the registration information directly through plaintiff’s website if it appears that a bad actor is using an .nz domain. On the other hand, the .nz registrants’ privacy and security interests are compromised as long as defendant is publishing non-current or historical .nz information out of its database. The Court finds that the public has an interest in the issuance of an injunction.

While arguably limited to historical Whois records, it’s a rare example of judicial commentary on the privacy rights of registrants and may well play into the ongoing debate about Whois in the post-GDPR world.

Even if it turns out not to have wider policy implications, the legal implications for DomainTools are potentially devastating.

While .nz has only about 710,000 domains under management, and is but one of over 1,500 TLDs, DomainTools, DNC and Judge Lasnik all seem to agree that the floodgates for further litigation may have now opened. Lasnik wrote:

defendant argues that a preliminary injunction in this case could start an avalanche of litigation as other registers attempt to protect the privacy of their registrants. If defendant built a business by downloading, storing, and using data from other registers in violation of the terms that governed its access to that data, defendant may be correct — other registers may be encouraged to pursue a breach of contract claim if plaintiff is successful here. It would be ironic, however, if a plaintiff who has shown a likelihood of success and irreparable injury were deprived of preliminary relief simply because defendant may have acted wrongfully toward others as well

DNC said in a statement: “Managers of other countries domain name systems across the world will want to pay attention to the judgment. This may raise confidence to fight their own cases should DomainTools be breaching their terms of use.”

The case has yet to go to court, but the fact that DNC won the injunction indicates that the judge believes it has a likelihood of winning.

Empty Whois a threat to the US elections?

Kevin Murphy, September 5, 2018, Domain Policy

Could a lack of Whois records thwart the fight against attempts to interfere in this year’s US elections?

That’s the threat raised by DomainTools CEO Tim Chen in a blog post, and others, this week.

Chen points to recent research by Facebook, based on an investigation by security company FireEye, that linked a large network of bogus news sites and social media accounts to the Iranian state media.

FireEye’s investigation used “historical Whois records”, presumably provided by DomainTools, to connect the dots between various domains and registrants associated with “Liberty Front Press”, a purportedly independent media organization and prolific social media user.

Facebook subsequently found that 652 accounts, pages and groups associated with the network, and removed them from its platform.

The accounts and sites in question were several years old but had been focusing primarily on politics in the UK and US since last year, Facebook said.

Based on screenshots shared by Facebook, the accounts had been used to spread political messages bashing US president Donald Trump and supporting the UK’s staunchly pro-Palestinian opposition leader Jeremy Corbyn.

Google’s research, also inspired by FireEye’s findings and Whois data, linked the network to the state-run Islamic Republic of Iran Broadcasting.

The actions by Google and Facebook come as part of their crackdown on fake news ahead of the US mid-term Congressional elections, this November, which are are largely being seen as a referendum on the Trump presidency.

Because the domains in question predate the General Data Protection Regulation and ICANN’s response to it, DomainTools was able to capture Whois records before they went dark in May.

While the records often use bogus data, registrant email addresses common to multiple domains could be used to establish common ownership.

Historical Whois data for domains registered after May 2018 is not available, which will likely degrade the utility of DomainTools’ service over time.

Chen concluded his blog post, which appeared to be written partly in response to data suggesting that GDPR has not led to a growth in spam, with this:

Domain name Whois data isn’t going to solve the world’s cyberattack problems all on its own, but these investigations, centering on an issue of global importance that threatens our very democracy, likely get severely impaired without it. And this is just the tip of the iceberg, a few uniquely important investigations among the hundreds of thousands of cyberattacks going on all day every day all over the globe by people and organizations that can now hide behind the anonymity inherent in today’s internet. It’s reasonable that domain names used for certain commercial or functional purposes should require transparent registration information. Whois is not a crime.

DomainTools is one of the founders of the new Coalition for a Secure and Transparent Internet, a lobby group devoted to encouraging legislatures to keep Whois open.

Representatives of Facebook and Iran’s government are among the members of the Expedited Policy Development Process on Whois, an emergency ICANN working group that is currently trying to write a permanent GDPR-compliant Whois policy for ICANN.