Nominet to charge brands for no-name Whois access

Nominet has become the second major registry to announce that trademark lawyers will have to pay for Whois after the EU General Data Protection Regulation comes into effect next month.
The company said late last week that it will offer the intellectual property community two tiers of Whois access.
First, they can pay for a searchable Whois with a much more limited output.
Nominet said that “users of the existing Searchable WHOIS who are not law enforcement will continue to have access to the service on a charged-for basis however the registrant name and address will be redacted”.
Second, they can request the full Whois record (including historical data) for a specific domain and get a response within one business day for no charge.
Approved law enforcement agencies will continue to get unfettered access to both services — with “enhanced output” for the searchable Whois — for no charge, Nominet said.
These changes were decided upon following a month-long consultation which accepted comments from interested parties.
Other significant changes incoming include:

• Scrapping UK-presence requirements for second-level registrations.
• Doing away with the current privacy services framework, offloading GDPR liability to registrars providing such services.
• Creating a standard opt-in mechanism for registrants who wish for their personal data to be disclosed in public Whois.

Nominet is the second registry I’m aware of to say it will charge brand owners for Whois access, after CoCCA 10 days ago.
CoCCA has since stated that it will sell IP owners a PDF containing the entire unredacted Whois history of a domain for $3, if they declare that they have a legitimate interest in the domain.
It also said they will be able to buy zone file access to the dozens of TLDs running on the CoCCA platform for $88 per TLD.

Now GNSO mulls emergency response to GDPR deadline

ICANN’s GNSO Council is thinking about deploying a never-before-used emergency mechanism to develop a Whois privacy policy in response to GDPR.
With the May 25 deadline for compliance with the EU’s General Data Protection Regulation fast approaching, the community is scrambling to figure out how it can bring ICANN’s policies and therefore its contracts into line with the Draconian privacy provisions of the new law.
Currently, ICANN contracts with registries and registrars demand the publication of full Whois records, something GDPR will not permit, so each company in the industry is busily figuring out how its own Whois database will comply.
Fearful of a “fragmented” Whois, ICANN’s board of directors is considering deploying its own top-down emergency measure — called a Temporary Policy in its contracts — to ensure uniformity across its contracts.
CEO Goran Marby revealed to DI earlier this month that a Temporary Policy was being considered, and he and other members of the board confirmed as much to GNSO leadership during a telephone briefing last week.
(It should be noted that the call took place prior to the receipt last week of guidance from the EU Article 29 Working Party, which prompted ICANN to start mulling legal options as one way to buy the industry some time to comply post-May.)
The call (recorded here with password Eur3wiEK and summarized in this letter (pdf)), focused almost exclusively on how the Council could respond to a board-mandated Temporary Policy, with the board suggesting a GNSO Expedited Policy Development Process might be the best way to proceed.
A Temporary Policy would expire within a year, so the GNSO would have to come up with a formal Consensus Policy within that time-frame if ICANN were to have any hope of having a uniform view of Whois across its contracts.
The Temporary Policy is a “strong option” for the board, and a “highly likely or likely” outcome, but nothing has been formally decided, the GNSO leaders heard from ICANN vice-chair Chris Disspain. He was briefly challenged by Marby, who appeared somewhat more committed to the move.
While the GNSO Council has not yet formally decided to deploy the EPDP, it appears to be the most-feasible option to meet the deadline a Temporary Policy would impose.
It is estimated that an EPDP could take as little as 360 days, compared to the estimated 849 days of a regular PDP.
The EPDP cuts out several of the initial steps of a regular PDP — mainly the need for an Initial Report and associated public comment period — which by my reading would shorten the process by at least 100 days.
It also seems to give the GNSO some wriggle room in how the actual policy creation takes place. It appears that the regular “working group” structure could be replaced, for example, with a “drafting team”.
If the EPDP has the Temporary Policy and WP29 guidance as its baseline for discussions, that could also help cut out some of the circular argument that usually characterizes Whois discussions.
Aware that the EPDP is a strong possibility, the Council is currently planning to give itself a crash course in the process, which has never been used before by any iteration of the Council.
It’s uncharted territory for both the GNSO and the ICANN board, and the only people who seem to have a firm grasp on how the two emergency mechanisms slot together are the ICANN staffers who are paid to know such things.
UPDATE: A couple of hours after this article was published, ICANN posted this three-page flow-chart (pdf) comparing EPDP to PDP. Lots of luck.

CoCCA to charge trademark owners for Whois access

CoCCA has become the first domain registry to publicly announce that it will charge trademark owners for access to Whois records.
The company said it plans to release an updated version of its software and registry service, containing a range of features for ensuring General Data Protection Regulation compliance, on April 20.
The public Whois records of affected TLDs will have the name, email, phone and physical address of the registrant omitted, but only if the registrant is an EU resident or uses an EU-based registrar or reseller.
There will be ways to opt-out of this, for registrants who want their information public.
The changes will come into effect first at .af, .cx, .gs, .gy, .ht, .hn, .ki, .kn, .sb, .tl, .kn, .ms and .nf, CoCCA said.
But the registry runs almost 40 gTLDs on its shared infrastructure and has almost 20 more running its software. They’re all pretty small zones, mostly ccTLDs.
CoCCA said that it will give access to private data to law enforcement and members of the Secure Domain Foundation, a DNS reputation service provider.
But trademark owners will get hit in the wallet if they want the same privileges. CoCCA said:

intellectual property owners or other entities who have a legitimate interest in redacted data will be able to order historical abstracts online for a nominal fee (provided they sign an attestation).

While the affected TLDs are probably small enough that the IP lobby won’t be overly concerned today, if CoCCA’s policy becomes more widespread in the industry — which it well could — expect an outcry.

Panic stations as Europe plays hardball on Whois privacy

Hopes that Whois records will continue to be available to broad sections of the internet community appeared dashed this week as European data protection heads ripped holes in ICANN’s plan for the industry to comply with the General Data Protection Regulation.
ICANN CEO Goran Marby warned that Whois faces imminent fragmentation and expressed disappointment that authorities have basically ignored his repeated requests for a moratorium on GDPR enforcement.
The Article 29 Working Party, made up of the heads of data protection authorities of EU member states, told ICANN this week that its so-called “Cookbook” compliance plan is nowhere near detailed enough.
In a letter (pdf), it also strongly hinted that intellectual property interests have little hope of retaining access to Whois contact information after GDPR comes into effect next month.
Any notion that WP29 might tell ICANN that the Cookbook was an over-reaction to GDPR, eschewing too many data elements from public records, was firmly put to bed.
Instead, the group explicitly supported ICANN’s plan to replace email addresses in the public Whois with anonymized addresses or a web-based registrant contact form.
It said it “welcomes the proposal to significantly reduce the types of personal data that shall be made publically [sic] available, as well as its proposal [to] introduce alternative methods to contact registrants”.
It also approved of the plan for a “layered” access plan, under which some entities — law enforcement in particular — would be able to access private contact information under an accreditation program.
But WP29 pooh-poohed the idea, put forward by some in the trademark community, that access to Whois could be restricted merely with the use of an IP address white-list.
It warned that the purposes for such access should be explicitly defined and said that what can be accessed should be tightly controlled.
WP29 does not appear to be a fan of anyone, even accredited users, getting bulk access to private Whois data.
While the group endorsed the idea that law enforcement agencies should be able to access Whois, it failed to provide similar comfort to IP interests, security researchers and other groups with self-declared “legitimate interests” in the data.
In what I’m reading as a veiled attack on the IP lobby, the WP29 letter says:

ICANN should take care in defining purposes in a manner which corresponds to its own organisational mission and mandate, which is to coordinate the stable operation of the Internet’s unique identifier systems. Purposes pursued by other interested third parties should not determine the purposes pursued by ICANN. The WP29 cautions ICANN not to conflate its own purposes with the interests of third parties, nor with the lawful grounds of processing which may be applicable in a particular case.

While it would be fairly easy to argue that giving access to security researchers contributes to “stable operation of the Internet’s unique identifier systems”, I think it would be considerably harder to argue that giving trademark owners an easy way to pursue suspected cybersquatters does the same.
In short, the letter clarifies that, rather than complying too much, ICANN has not gone far enough.
WP29 also roundly ignored ICANN’s request for an enforcement moratorium to give the community enough time to come up with a compliance policy and the industry enough time to implement it, irking ICANN into threatening legal action.
Marby said in a blog post yesterday:

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.

He said that the WP29 statement puts ICANN at odds with the consensus advice of its Governmental Advisory Committee — which, it should be noted, includes the European Commission and most of the EU member states.
The GAC has told ICANN to “Ensure that the proposed interim model maintains current WHOIS requirements to the fullest extent possible” and to reconsider its plan to remove registrant email addresses from public records.
That’s how stupid the situation has become — the same governments telling ICANN to retain email addresses is also telling it to remove them.
Outside of Europe, the United States government has been explicit that it wants Whois access to remain available.
Marby said that an ICANN delegation will attend a meeting of the WP29 Technology Subgroup in Brussels on April 23 to further discuss the outstanding issues.
In a quick response (pdf) to the WP29 letter, he warned that a fragmented Whois and the absence of a moratorium could spell doom for the smooth functioning of the internet.

We strongly believe that if WHOIS is fragmented, it will have a detrimental impact on the entire Internet. A key function of WHOIS allows those participating in the domain name system and in other aspects of work on the Internet to know who else is working within that system. Those working on the Internet require the information contained within WHOIS to be able to communicate with others working within that system.

Reaction from elsewhere in the community has so far comprised variations of “told you so” and hand-wringing about the impact after May 25.
Michele Neylon, head of the registrar Blacknight, blogged that the letter signaled “game over” for the public Whois.
“Come the end of May, public whois as we know it will be dead,” he wrote.
Academic Farzaneh Badii, executive director of the Internet Governance Project and a leading figure in ICANN’s non-commercial users community, blamed several factors for the current 11th-hour predicament, but mainly the fact that her constituency’s lobbying was ignored for so long.
“The Noncommercial Stakeholders Group was the broken record that everyone perceived as not worth paying attention to. But GDPR got real and ICANN has to deal with it,” she wrote.
Matt Serlin of the IP-centric registrar Brandsight, wrote that the letter was “predictable” and said:

The WHOIS system, as it has been known for two decades, will cease to exist. Unfettered access to registration information for gTLDs is simply not going to be possible going forward after May 25th. Yes, there are still questions as to what the final model ICANN puts forth will be, but it will certainly drastically change how WHOIS will function.

Serlin held out some hope that the unspecified legal action Marby has floated may go some way to extend the May 25 GDPR enforcement date.
The community awaits Marby’s next update with bated breath.

Afilias scraps plan to scrap Whois

Afilias has “temporarily suspended” its plan to migrate its TLDs to an essentially thin Whois model.
In what appears to be an effort to roll back some GDPR-related gun-jumping, the registry said it will instead wait and see how ICANN’s efforts to consult with European data protection authorities play out.
Afilias had told its registrars earlier this week that its public Whois output from May 25 will be devoid of any contact information for the registrant, as reported by DNW.
It had said that it would continue to work with law enforcement on access to Whois records, but said that others (such as trademark owners) would not have access until ICANN comes up with an accreditation program.
It was the first major gTLD registry to announce its GDPR plans, but it evidently received push-back.
The affected TLDs were to be: .info, .mobi, .pro, .poker, .pink, .black, .red, .blue, .kim, .shiksha, .promo, .lgbt, .ski, .bio, .green, .lotto, .pet, .bet, .vote, .voto, .archi, .organic and .llc.
Many more client gTLDs would have been able to opt-in to the same scaled-back system.
But the company told registrars today that it wanted to correct “mis-characterizations” of that message and wanted to “clarify that Afilias is not ‘going it alone'”.
Rather, it’s going to hang back until ICANN gets guidance from the EU’s DPAs.
“Importantly, we expect that ICANN’s request for guidance from the data protection authorities will yield helpful input that, in conjunction with the best thinking of the community, will enable a workable solution to emerge,” the Afilias message said.
The company said in a statement sent to DI tonight:

Afilias today announced that it is temporarily suspending plans to limit the display of WHOIS data to comply with the EU General Data Protection Regulation (GDPR) currently scheduled to take effect on 25MAY2018. Afilias has received a number of questions about its plans, and anticipates that they may be affected by guidance from data protection authorities that has been requested by ICANN. This guidance is expected to be materially helpful in the community’s efforts to resolve the various issues surrounding GDPR requirements.
Afilias is participating in a number of community groups that are considering these issues, including as a principal in ICANN’s pilot implementation of the Registration Data Access Protocol (RDAP), a potential technical solution for enabling differentiated access to registration data depending on the legitimate purpose of the requestor. For example, law enforcement may need access to certain types of Personally Identifiable Information (PII), trademark guardians to other types, etc. RDAP enables the management of this access in an efficient and effective manner.
As the deadline for GDPR implementation approaches, the community is working diligently in a number of areas to find solutions needed to balance a wide range of community interests. Afilias will continue working collaboratively within these groups in the expectation that appropriate solutions will be reached prior to the GDPR implementation date. Absent guidance from the data protection authorities, Afilias will reconsider its plans as appropriate to ensure compliance with GDPR.

It’s still very possible that Afilias, and other gTLD registries and registrars, could end up gutting Whois in much the same way come May 25 anyway, but for now at least it seems Afilias it willing to play wait-and-see.
As a reminder, there’s going to be an ICANN-supported conference call tomorrow on an Intellectual Property Constituency proposal for a post-GDPR Whois accreditation model.

Whois policy group closes down in face of GDPR

An ICANN working group devoted to crafting Whois policy has closed down “until further notice” in light of the EU General Data Protection Regulation.
The Registration Data Service Policy Development Process Working Group will have no more meetings until it receives “guidance from the [ICANN] Board regarding how this WG will be affected by the GDPR compliance efforts”.
That’s according to WG co-chair Chuck Gomes, in an email to the group this morning. The mailing list will remain active to keep members informed of progress, he said.
The group has been tasked with developing “comprehensive Whois reform”.
It’s been working for over two years to attempt to find consensus on changes such as tiered access and data privacy, the latest iteration of fruitless, fractious Whois policy discussions dating back a couple of decades, and had made very little progress.
Recently, it’s also been hit by infighting and, in my opinion, a sense of helplessness in the face of GDPR, the EU privacy law that will take precedence over any policy ICANN comes up with.
Last month, prominent Non-Commercial Stakeholder Group member Stephanie Perrin publicly resigned from the WG, saying it was “fundamentally flawed” and complaining the process was an “antique” that wasn’t sufficiently taking GDPR into account.
As DI has been reporting for the last several months, there’s very little clarity right now about how GDPR will effect ICANN’s Whois policy.
ICANN CEO Goran Marby told us yesterday that he’s “cautiously optimistic” that EU data protection authorities will soon provide some firm guidance on what it means to be GDPR-compliant.
It appears that the RDS group’s fate may also lie in the hands of the DPAs, for now.

Marby ponders emergency powers to avoid fragmented Whois

ICANN could invoke emergency powers in its contracts to prevent Whois becoming “fragmented” after EU privacy laws kick in next month.
That’s a possibility that emerged during a DI interview with ICANN CEO Goran Marby yesterday.
Marby told us that he’s “cautiously optimistic” that European data protection authorities will soon provide clear guidance that will help the domain industry become compliant with the General Data Protection Regulation, which becomes fully effective May 25.
But he said that a lack of such guidance will lead to a situation where different companies provide different levels of public Whois.
“It’s a a high probability that Whois goes fragmented or that Whois will be in a sort of ‘thin’ model in which very little information is collected and very little information is displayed,” he said. “That’s a sort of worst-case scenario.”
I should note that the interview was conducted yesterday before news broke that Afilias has become the first major gTLD registry to announce its Whois output will be essentially thin — eschewing all registrant contact data — from May 25.
Marby has asked European DPAs for two things.
First, guidance on whether its “Cookbook” proposal for a dramatically scaled-back, GDPR-compliant Whois is in fact GDPR-compliant.
Second, an enforcement moratorium while registries and registrars actually go about implementing the Cookbook.
“If we don’t get guidance that’s clear enough, we will see a fragmented Whois. If we get guidance that is clear enough we can work it out,” Marby said.
A moratorium could enable Whois to carry on in its current state, or something close to it, while ICANN goes about creating a new policy that fits with the DPA’s guidance.
If the DPAs refuse a moratorium, we’re looking at a black hole of indeterminate duration during which nobody — not even law enforcement or self-appointed trademark cops — can easily access full Whois records.
“It’s not something I can do anything about, it’s really in the hands of the DPAs,” Marby said. “Remember that it’s the law.”
While ICANN has expended most of its effort to date on creating a model for the public Whois, there’s a parallel effort to create an accreditation program that would enable organizations with “legitimate purposes” to access full, or at least more complete, Whois records.
It’s the IP lawyers that are driving this effort, primarily, terrified that their ability to hunt down cybersquatters and bootleggers will be diminished come May 25.
ICANN has so far resisted calls to endorse the so-called “Cannoli” draft accreditation model, with Marby publicly saying that it needs cross-community support.
But the organization has committed staff support resources to discussion of Cannoli. There’s a new mailing list and there will be a community conference call this coming Friday at 1400 UTC.
Marby said that he shares the worries of the IP community, adding: “If we get the proper guidance from the DPAs, we will know how to sort out the accreditation model.”
He met with the Article 29 Working Party, comprised of DPAs, last week; the group agreed to put Whois on its agenda for its meeting next week, April 10-11.
The fact that it’s up for discussion is what gives Marby his cautious optimism that he will get the guidance he needs.
Assuming the DPAs deliver, ICANN is then in the predicament of having to figure out a way to enforce, via its contracts, a Whois system that is compliant with the DPAs’ interpretation of GDPR.
Usually, this would require a GNSO Policy Development Process leading to a binding Consensus Policy.
But Marby said ICANN’s board of directors has other options, such as what he called an “emergency policy”.
This is a reference, I believe, to the “Temporary Policies” clauses, which can be found in the Registrar Accreditation Agreement and Registry Agreement.
Such policies can be mandated by a super-majority vote of the board, would have to be narrowly tailored to solve the specific problem at hand, and could be in effect no longer than one year.
A temporary policy could be replaced by a compatible, community-created Consensus Policy.
It’s possible that a temporary policy could, for example, force Afilias and others to reverse their plans to switch to thin Whois.
But that’s perhaps getting ahead of ourselves.
Fact is, the advice the DPAs provide following their Article 29 meeting next week is what’s going to define Whois for the foreseeable future.
If the guidance is clear, the ICANN organization and community will have their direction of travel mapped out for them.
If it’s vague, wishy-washy, and non-committal, then it’s likely that only the European Court of Justice will be able to provide clarity. And that would take many years.
And whatever the DPAs say, Marby says it is “highly improbable” that Whois will continue to exist in its current form.
“The GDPR will have an effect on the Whois system. Not everybody will get access to the Whois system. Not everybody will have as easy access as before,” he said.
“That’s not a bug, that’s a feature of the legislation,” he said. “That’s not ICANN’s fault, it’s what the legislator thought when it made this legislation. It is the legislators’ intention to make sure people’s data is handled in a different way going forward, so it will have an effect.”
The community awaits the DPAs’ guidance with baited breath.

Registrars will miss GDPR deadline by a mile

Registries and registrars won’t be able to implement ICANN’s proposed overhaul of the Whois system in time for the EU’s General Data Protection Regulation coming into effect.
That’s according to an estimated timetable (pdf) sent by ICANN’s contracted parties to the organization this week.
While they feel confident that some elements of ICANN’s GDPR compliance plan could be in place before May 25 this year, when the law kicks in, they feel that other elements could take many months to design and roll out.
Depending on the detail of the finalized plan, we could be looking at the back end of 2019 before all the pieces have been put in place.
Crucially, the contracted parties warn that designing and rolling out a temporary method for granting Whois access to entities with legitimate interests in the data, such as police and trademark owners, could take a year.
And that’s just the stop-gap, Band-Aid hack that individual registries and registrars would put in place while waiting — “quarters (or possibly years), rather than months” — for a fully centralized ICANN accreditation solution to be put in place.
The outlook looks bleak for those hoping for uninterrupted Whois access, in other words.
But the timetable lists many other sources of potential delay too.
Even just replacing the registrant’s email address with a web form or anonymized forwarding address could take up to four months to put online, the contracted parties say.
Generally speaking, the more the post-GDPR Whois differs from the current model the longer the contracted parties believe it will take to roll out.
Likewise, the more granular the controls on the data, the longer the implementation window.
For example, if ICANN forces registrars to differentiate between legal and natural persons, or between European and non-European registrants, that’s going to add six months to the implementation time and cost a bomb, the letter says.
Anything that messes with EPP, the protocol underpinning all registry-registrar interactions, will add some serious time to the roll-out too, due to the implementation time and the contractual requirement for a 90-day notice period.
The heaviest workload highlighted in the letter is the proposed opt-in system for registrants (such as domain investors) who wish to waive their privacy rights in favor of making themselves more contactable.
The contracted parties reckon this would take nine months if it’s implemented only at the registrar, or up to 15 months if coordination between registries and registrars is required (and that timeline assumes no new EPP extensions are going to be needed).
It’s possible that the estimates in the letter could be exaggerated as part of the contracted parties’ efforts to pressure ICANN to adopt the kind of post-GDPR Whois they want to see.
But even if we assume that is the case, and even if ICANN were to finalize its compliance model tomorrow, there appears to be little chance that it will be fully implemented at all registrars and registries in time for May 25.
The letter notes that the timetable is an estimate and does not apply to all contracted parties.
As I blogged earlier today, ICANN CEO Goran Marby has this week reached out to data protection authorities across the EU for guidance, in a letter that also asks the DPAs for an enforcement moratorium while the industry and community gets its act together.
Late last year, ICANN also committed not to enforce the Whois elements of its contracts when technical breaches are actually related to GDPR compliance.

ICANN chief begs privacy watchdogs for Whois advice

ICANN CEO Goran Marby has written to the data protection authorities of all 28 European Union states, along with the European Data Protection Supervisor, to ask for guidance on how to implement new privacy laws.
Marby also asked the DPAs about the possibility of an enforcement moratorium, to give the domain industry and ICANN more time to formulate their collective response to the General Data Protection Regulation.
GDPR, which aims to give EU citizens more control over their personal data, comes into full effect May 25. Companies that break the rules face fines that could amount to millions of euros.
But ICANN does not yet have a firm plan for bringing the distributed Whois system into compliance with GDPR, and has repeatedly indicated that it needs guidance from European DPAs.
“ICANN and more than a thousand of the domain names registries and registrars are at a critical juncture,” Marby wrote (pdf).
“We need specific guidance from European data protection authorities in order to meet the needs of the global internet stakeholder community, including governments, privacy authorities, law enforcement agencies, intellectual property holders, cybersecurity experts, domain name registries, registrars, registrants and ordinary internet users,” he wrote.
ICANN has already written a proposal — known as the “Cookbook” and sent to DPAs three weeks ago — for how gTLD registrars and registries could comply with GDPR by removing most fields from public Whois records.
But Marby’s letter points out that many ICANN community members think the Cookbook either goes too far or not far enough.
As we reported a week ago, the Governmental Advisory Committee and Intellectual Property Constituency are not convinced ICANN needs to chop quite as much info from the public Whois as it’s currently planning.
But on the flipside, there are privacy advocates who think far less data should be collected on registrants and fundamentally question ICANN’s power to mandate public Whois access in its registry and registrar contracts.
Both sides of the debate are referenced in the letter.
“Guidance from DPAs on ICANN’s plan of action as presented in the Cookbook, and in particular, the areas where there are competing views, is critical as soon as possible, but particularly during the next few weeks,” Marby wrote.
Whether ICANN will get the answers it needs on the timetable it needs them is open to debate.
Many community members expressed skepticism about whether the DPAs’ commitment to the urgency of the issue matches ICANN’s own, during ICANN 61 earlier this month.
There seemed to be little confidence that the DPAs’ responses, should ICANN receive any, will provide the clarity the industry needs.
It may also be bad timing given the unrelated Cambridge Analytica/Facebook scandal, which appears to be consuming the attention of some European DPAs.

Privacy could be a million-dollar business for ICANN

ICANN has set out the fees it plans to charge to officially accredit Whois proxy and privacy services, in the face of resistance from some registrars.
VP of finance Becky Nash told registrars during a session at ICANN 61 last week that they can expect to pay $3,500 for their initial accreditation and $4,000 per year thereafter.
Those are exactly the same fees as ICANN charges under its regular registrar accreditation program.
Registrars that also offer privacy should expect to see their annual ICANN flat fees double, in other words. Per-domain transaction fees would be unaffected.
The up-front application fee would be reduced $2,000 when the privacy service is to be offered by an accredited registrar, but it would stay at $3,500 if the company offering service is merely “affiliated” with the registrar.
Nash said all the fees have been calculated on a per-accreditation basis, independent of the volume of applications ICANN receives.
Director of registrar services Jennifer Gore said that while ICANN has not baked an estimate of the number of accredited providers into its calculations, registrars have previously estimated the number at between 200 and 250 companies.
That would put the upper end of annual accreditation fees at $1 million, with $875,000 up-front for initial applications.
Volker Greimann, general counsel of the registrar Key-Systems, pointed out during the session that many registrars give away privacy services for free or at cost.
“This just adds cost to an already expensive service that does not really make money for a lot of providers,” he said.
He suggested that the prices could lead to unexpected negative consequences.
“Pricing this in this region will just lead to a lot of unaccredited providers that will switch names every couple months, an underground that we don’t really want,” he said. “We want to have as many people on board as possible and the way to do that is to keep costs low.”
“Pricing them out of the market is not the way to attract providers to join this scheme,” he said.
Nash responded that registrars are forbidden under the incoming privacy/proxy policy from accepting registrations from unaccredited services.
She added that the fees have been calculated on a “cost-recovery” basis. Costs include the initial background checks, outreach, contract admin, compliance, billing and so on.
But some registrars expressed skepticism that the proposed fees could be justified, given that ICANN does not plan to staff up to administer the program.
Another big question is whether proxy/privacy services are going to continue to have value after May this year, when the European Union’s General Data Protection Regulation kicks in.
The current ICANN plan for GDPR compliance would see individual registrants have all of their private information removed from the public Whois.
It’s not currently clear how many people and what kinds of people will continue to have access to unmasked Whois, so there are likely still plenty of cases where individuals might feel they need an extra layer of protection — if they live in a dictatorship and are engaged in rebellious political speech, for example.
There could also be cases where companies wish to mask their details ahead of, say, a product launch.
And, let’s face it, bad actors will continue to want to use privacy services on domains they intend to misuse.
The proxy/privacy policy came up through the formal GNSO Policy Development Process and was approved two years ago. It’s currently in the implementation phase.
According to a presentation from the ICANN 61 session, ICANN hopes to put the final implementation plan out for public comment by the end of the month.