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GoDaddy and DomainTools scrap over Whois access

Kevin Murphy, January 12, 2018, Domain Registrars

GoDaddy has seriously limited DomainTools’ access to its customers’ Whois records, pissing off DomainTools.

DomainTools CEO Tim Chen this week complained to DI that its access to Whois has been throttled back significantly in recent months, making it very difficult to keep its massive database of domain information up to date.

Chen said that DomainTools is currently only able to access GoDaddy’s Whois over port 43 at about 2% of the rate it had previously.

He said that this has been going on for about six months and that the market-leading registrar has been unresponsive to its requests to have previous levels restored.

“By throttling access to the data by 98% they’re defeating the ability of security practitioners to get data on GoDaddy domains,” Chen said. “It’s particularly troublesome because they [GoDaddy] are such a big part of DNS.”

“We have customers who say the quality of GoDaddy data is just degrading across the board, either through direct look-ups or in some of the DomainTools products themselves,” he said.

DomainTools customers include security professionals trying to hunt down the source of attacks and intellectual property interests trying to locate pirates and cybersquatters.

GoDaddy today confirmed to DI that it has been throttling DomainTools’ Whois access, and said that it’s part of ongoing anti-spam measures.

In recent years there’s been an increase in the amount of spam — usually related to web design, hosting, and SEO — sent to recent domain registrants using email addresses harvested from new Whois records.

GoDaddy, as the market-share leader in retail domain sales, takes a tonne of flak from customers who, unaware of standard Whois practice, think the company is selling their personal information to spammers.

This kind of Twitter exchange is fairly common on GoDaddy’s feed:

While GoDaddy is not saying that DomainTools is directly responsible for this kind of activity, throttling its port 43 traffic is one way the company is trying to counter the problem, VP of policy James Bladel told DI tonight.

“Companies like [DomainTools] present a challenge,” he said. “While we may know these folks, we don’t know who their customers are.”

But that’s just a part of the issue. GoDaddy was also concerned about the amount of resources DomainTools was consuming, and its own future legal responsibilities under the European Union’s forthcoming General Data Protection Regulation.

“When [Chen] says they’re down to a fraction or a percentage of what they had previously, well what they had previously was they were updating and archiving Whois almost in real time,” Bladel said. “And that’s not going to fly.”

“That is not only, we feel, not congruent with our responsibilities to our customers’ data, but it’s also, later on down the road, exactly the kind of thing that GDPR and other regulations are designed to stop,” he said.

GDPR is the EU law that, when it fully kicks in in May, gives European citizens much more rights over the sharing and processing of their private data.

Bladel added that DomainTools is still getting more Whois access than other parties using port 43.

“They have a level of access that is much, much higher than what they would normally have as a registrar,” he said, “but much lower than I think they want, because they want to effectively download and keep current the entirety of the Whois database.”

I’m not getting a sense from GoDaddy that it’s likely to backtrack on its changes.

Indeed, the company also today announced that it from January 25 it will start to “mask” key elements of Whois records when queried over port 43.

GoDaddy told high-value customers such as domainers today that port 43 queries will no longer return the registrant’s first name, last name, email address or phone number.

Bulk Whois users such as registrars (and, I assume, DomainTools) that have been white-listed via the “GoDaddy Port43 Process” will continue to receive full records.

Its web-based Whois, which includes a CAPTCHA gateway to prevent scraping, will continue to function as normal.

Bladel said that these changes are NOT related to GDPR, nor to the fact that ICANN said a couple months back that it would not enforce compliance with Whois provisions of the Registrar Accreditation Agreement, subject to certain conditions.

Big changes at DomainTools as privacy law looms

Kevin Murphy, January 11, 2018, Domain Services

Regular users of DomainTools should expect significant changes to their service, possibly unwelcome, as the impact of incoming European Union privacy law begins to be felt.

Professional users such as domain investors are most likely to be impacted by the changes.

The company hopes to announce how its services will be rejiggered to comply with the General Data Protection Regulation in the next few weeks, probably in February, but CEO Tim Chen spoke to DI yesterday in general terms about the law’s possible impact.

“There will be changes to the levels of service we offer currently, especially to any users of DomainTools that are not enterprises,” Chen said.

GDPR governs how personal data on EU citizens is captured, shared and processed. It deals with issues such as customer consent, the length of time such data may be stored, and the purposes for which it may be processed.

Given that DomainTools’ entire business model is based on capturing domain registrants’ contact information without their explicit consent, then storing, processing and sharing that data indefinitely, it doesn’t take a genius to work out that the new law represents a possibly existential threat.

But while Chen says he’s “very concerned” about GDPR, he expects the use cases of his enterprise customers to be protected.

DomainTools no longer considers itself a Whois company, Chen said, it’s a security services company now. Only about 20% of its revenue now comes from the $99-a-month customers who pay to access services such as reverse Whois and historical Whois queries.

The rest comes from the 500-odd enterprise customers it has, which use the company’s data for purposes such as tracking down network abuse and intellectual property theft.

DomainTools is very much aligned here with the governments and IP lawyers that are pressing ICANN and European data protection authorities to come up with a way Whois data can still be made available for these “legitimate purposes”.

“We’re very focused on our most-important goal of making sure the cyber security and network security use cases for Whois data are represented in the final discussions on how this legislation is really going to land,” he said.

“There needs to be some level of access that is retained for uses that are very consistent with protecting the very constituents that this legislation is trying to protect from a privacy perspective,” he said.

The two big issues pressing on Chen’s mind from a GDPR perspective are the ability of the company to continue to aggregate Whois records from hundreds of TLDs and thousands of registrars, and its ability to continue to provide historical, archived Whois records — the company’s most-popular product after vanilla Whois..

These are both critical for customers responding to security issues or trying to hunt down serial cybersquatters and copyright infringers, Chen said.

“[Customers are] very concerned, because their ability to use this data as part of their incident response is critical, and the removal of the data from that process really does injure their ability to do their jobs,” he said.

How far these use cases will be protected under GDPR is still an open question, one largely to be determined by European DPAs, and DomainTools, like ICANN the rest of the domain industry, is still largely in discussion mode.

“Part of what we need to help DPAs understand is: how long is long enough?” Chen said. “Answering how long this data can be archived is very important.”

ICANN was recently advised by its lawyers to take its case for maintaining Whois in as recognizable form as possible to the DPAs and other European privacy bodies.

And governments, via the Governmental Advisory Committee, recently urged ICANN to continue to permit Whois access for “legitimate purposes”.

DomainTools is in a different position to most of the rest of the industry. In terms of its core service, it’s not a contracted party with ICANN, so perhaps will have to rely on hoping whatever the registries and registrars work out will also apply to its own offerings.

It’s also different in that it has no direct customer relationship with the registrants whose data it processes, nor does it have a contractual relationship with the companies that do have these customer relationships.

This could make the issue of consent — the right of registrant to have a say in how their data is processed and when it is deleted — tricky.

“We’re not in a position to get consent from domain owners to do what we do,” Chen said. “I think where we need to be more thoughtful is whether DomainTools needs to have a process where people can opt out of having their data processed.”

“When I think about consent, it’s not on the way in, because we just don’t have a way to do that, it’s allowing a way out… a mechanism where people can object to their data being processed,” he said.

How DomainTools’ non-enterprise customers and users will be affected should become clear when the company outlines its plans in the coming weeks.

But Chen suggested that most casual users should not see too much impact.

“The ability of anyone who has an interest in using Whois data, who needs it every now and then, for looking up a Whois record of a domain because they want to buy it as a domain investor for example, that should still be very possible after GDPR,” he said.

“I don’t think GDPR is aimed at individual, one-at-a-time use cases for data, I think it’s aimed at scalable abuse of the data for bad purposes,” he said.

“If you’re running a business in domain names and you need to get Whois at significant scale, and you need to evaluate that many domains for some reason, that’s where the impact may be,” he said.

Disclosure: I share a complimentary DomainTools account with several other domain industry bloggers.

How Whois could survive new EU privacy law

Kevin Murphy, December 29, 2017, Domain Policy

Reports of the death of Whois may have been greatly exaggerated.

Lawyers for ICANN reckon the current public system “could continue to exist in some form” after new European Union privacy laws kick in next May, according to advice published (hurriedly, judging by the typos towards the end) shortly before Christmas.

Hamilton, the Swedish law firm hired by ICANN to probe the impact of the General Data Protection Regulation, seems to be mellowing on its recommendation that Whois access be permanently “layered” according to who wants to access registration records.

Now, it’s saying that layered Whois access could merely be a “temporary solution” to protect the industry from fines and litigation until ICANN negotiates a permanent peace treaty with EU privacy regulators that would have less impact on current Whois users.

This opinion came in the third of three memorandums from Hamilton, published by ICANN last week. You can read it here (pdf).

With the first two memos strongly hinting that layered access would be the most appropriate way forward, the third points out the huge, possibly insurmountable burden this would place on registrars, registries, law enforcement agencies, the courts, IP lawyers, and others.

It instead suggests that layered access be temporary, with ICANN taking the lead in arranging a longer-term understanding with the EU.

The latest Hamilton memo seems to have taken on board comments from registries and registrars, intellectual property lawyers and domain investors, none of which are particularly enthusiastic about GDPR and the lack of clarity surrounding its impacts.

GDPR is an EU-wide law that gives much stronger protection to the personal data of private citizens.

Companies that process such data are kept on a much tighter leash and could face millions of euros of fines if they use the data for purposes their customers have not consented to or without a good enough reason.

It’s not a specifically intended to regulate Whois — indeed, its conflict with longstanding practice and ICANN rules seems to have been an afterthought — but Whois is the place the domain industry is most likely to find itself breaking the law.

It seems to be generally agreed that the current system of open, public access to all fields in all Whois records in all gTLDs would not be compliant with GDPR without some significant changes.

It also seems to be generally agreed that the data can be hugely useful for purposes such as police investigations, trademark enforcement and the domain secondary market.

The idea that layered access — where different sets of folks get access to different sets of data based on their legitimate needs — might be a solution has therefore gained some support.

Hamilton notes:

Given the limited time remaining until the GDPR enters into effect, we believe that the best chance of continuing to provide the Whois services and still be compliant with the GDPR will be to implement an interim solution based on an layered access model that would ensure continued processing of Whois data for some limited purposes.

The problem with this solution, as Hamilton now notes, is that it could be hugely impractical.

such a model would require the registrars to perform an assessment of interests in accordance with Article 6.1(f) GDPR on an individual case-by-case basis each time a request for access is made. This would put a significant organizational and administrative pressure on the registrars and also require them to obtain and maintain the competence required to make such assessments in order to deliver the requested data in a reasonably timely manner. In our opinion, public access to (limited) Whois data would therefore be of preference and necessary to fulfill the above purposes in a practical and efficient way.

And, Hamilton says, a scenario in which all cops had access to all Whois data would not necessarily be GDPR-compliant. Police may have to right to access the data, but they’d have to request it on a case-by-case basis.

Registrars — or even the courts — would have to make the decision as to whether each request was legit.

It would get even more complex for registrars when the Whois requester was an IP lawyer, as they’d have to check whether it was appropriate to disclose the personal data to both the lawyer and her client, the memo says.

For registrars, the largely nominal cost of providing a Whois service today would suddenly rocket as each Whois lookup would require human intervention.

Having introduced the concept of layered access and then shot it to pieces, Hamilton finally recommends that ICANN start talks with data protection authorities in the EU in order to find a solution where Whois services can continue to be provided in a form available to the general public in the future”.

ICANN should start an “informal dialogue” with the Article 29 Working Party, the EU privacy watchdog made up of data protection authorities from each member state, and initiate formal consultations with one or more of these DPAs individually, the memo recommends.

The WP29 could prove a tough chat, given that the group has a long history of calling for layered access, and its views, even if changed, would not be binding anyway.

So Hamilton says ICANN, in conjunction with its registries and registrars, should carry out a formal data protection impact assessment (DPIA) and submit it to a relevant DPA in a EU country where it has a corporate presence, such as Belgium.

That way, at least ICANN has a chance of retaining Whois in a vaguely recognizable form while protecting the industry from crippling extra costs.

In short, the industry is still going to have to make some changes to Whois in the first half of 2018, some of which may make Whois access troublesome for many current users, but those changes may not last forever.

ICANN CEO Goran Marby said in a blog post:

We’ve made it a high priority to find a path forward to ensure compliance with the GDPR while maintaining WHOIS to the greatest extent possible. Now, it is time to identify potential models that address both GDPR and ICANN compliance obligations.

We’ll need to move quickly, while taking measured steps to develop proposed compliance models. Based on the analysis from Hamilton, it appears likely that we will need to incorporate the advice about using a layered access model as a way forward.

He wants the industry to submit compliance models by January 10 for publication January 15, with ICANN hoping to “settle on a compliance model by the end of January”.

ICANN: tell us how you will break Whois rules

Kevin Murphy, December 11, 2017, Domain Policy

ICANN has invited registrars and registries to formally describe how they plan to break the current rules governing Whois in order to come into compliance with European Union law.

The organization today published a set of guidelines for companies to submit proposals for closing off parts of Whois to most internet users.

It’s the latest stage of the increasingly panicky path towards reconciling ICANN’s contracts with the General Data Protection Regulation, the EU law that comes into full effect in a little over five months.

GDPR is designed to protect the privacy of EU citizens. It’s generally thought to essentially ban the full, blanket, open publication of individual registrants’ contact information, but there’s still some confusion about what exactly registries and registrars can do to become compliant.

Fines maxing out at of millions of euros could be levied against companies that break the GDPR.

ICANN said last month that it would not pursue contracted parties that have to breach their agreements in order to avoid breaking the law.

The catch was that they would have to submit their proposals for revised Whois services to ICANN for approval first. Today is the first time since then that ICANN has officially requested such proposals.

The request appears fairly comprehensive.

Registries and registrars will have to describe how their Whois would differ from the norm, how it would affect interoperability, how protected data could be accessed by parties with “legitimate interests”, and so on.

Proposals would be given to ICANN’s legal adviser on GDPR, the Swedish law firm Hamilton, and published on ICANN’s web site.

ICANN notes that submitting a proposal does not guarantee that it will be accepted.

Open Whois must die, Europe privacy chiefs tell ICANN

Kevin Murphy, December 7, 2017, Domain Policy

Unfettered public access to full Whois records is illegal and has to got to go, an influential European Union advisory body has told ICANN.

The Article 29 Working Party on Data Protection, WP29, wrote to ICANN yesterday to say that “that the original purposes of the WHOIS directories can be achieved via layered access” and that the current system “does not appear to meet the criteria” of EU law.

WP29 is made up of representatives of the data protection agencies in each EU member state. It’s named after Article 29 of the EU’s 1995 Data Protection Directive.

This directive is parent legislation of the incoming General Data Protection Regulation, which from May 2018 will see companies fined potentially millions of euros if they fail to protect the privacy of EU citizens’ data.

But WP29 said that there are questions about the legality of full public Whois under even the 1995 directive, claiming to have been warning ICANN about this since 2003:

WP29 wishes to stress that the unlimited publication of personal data of individual domain name holders raises serious concerns regarding the lawfulness of such practice under the current European Data Protection directive (95/46/EC), especially regarding the necessity to have a legitimate purpose and a legal ground for such processing.

Under the directive and GDPR, companies are not allowed to make consent to the publication of private data a precondition of a service, which is currently the case with domain registration, according to WP29.

Registrars cannot even claim the publication is contractually mandated, because registrants are not party to the Registrar Accreditation Agreement, the letter (pdf) says.

WP29 adds that law enforcement should still be able to get access to Whois data, but that a “layered” access control approach should be used to prevent full disclosure to anyone with a web browser.

ICANN recently put a freeze on its contract compliance activities surrounding Whois, asking registries and registrars to supply the organization with the framework and legal advice they’re using to become compliant with GDPR.

Registries and registrars are naturally impatient — after a GDPR-compatible workaround is agreed upon, they’ll still need to invest time and resources into actually implementing it.

But ICANN recently told contracted parties that it hopes to lay out a path forward before school breaks up for Christmas December 22.