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Could a new US law make GDPR irrelevant?

Kevin Murphy, August 29, 2018, Domain Policy

Opponents of Whois privacy are pushing for legislation that would basically reverse the impact of GDPR for the vast majority of domain names.

Privacy advocate Milton Mueller of the Internet Governance Project today scooped the news that draft legislation to this effect is being circulated by “special interests” in Washington DC.

He’s even published the draft (pdf).

Mueller does not call out the authors of the bill by name — though he does heavily hint that DomainTools may be involved — saying instead that they are “the same folks who are always trying to regulate and control the Internet. Copyright maximalists, big pharma, and the like.”

I’d hazard a guess these guys may be involved.

The bill is currently called the Transparent, Open and Secure Internet Act of 2018, or TOSI for short. In my ongoing quest to coin a phrase and have it stick, I’m tempted to refer to its supporters as “tossers”.

TOSI would force registries and registrars to publish Whois records in full, as they were before May this year when ICANN’s “Temp Spec” Whois policy — a GDPR Band-aid — came into effect.

It would capture all domain companies based in US jurisdiction, as well as non-US companies that sell domains to US citizens or sell domains that are used to market goods or services to US citizens.

Essentially every company in the industry, in other words.

Even if only US-based companies fell under TOSI, that still includes Verisign and GoDaddy and therefore the majority of all extant domains.

The bill would also ban privacy services for registrants who collect data on their visitors or monetize the domains in any way (not just transactionally with a storefront — serving up an ad would count too).

Privacy services would have to terminate such services when informed that a registrant is monetizing their domains.

But the bill doesn’t stop there.

Failing to publish Whois records in full would be an “unfair or deceptive act or practice” and the Federal Trade Commission would be allowed to pursue damages against registries and registrars that break the law.

In short, it’s a wish-list for those who oppose the new regime of privacy brought in by ICANN’s response to the General Data Protection Regulation.

While it’s well-documented that the US executive branch, in the form of the National Telecommunications and Information Administration, is no fan of GDPR, whether there’s any interest in the US Congress to adopt such legislation is another matter.

Is this an IP lawyer’s pipe-dream, or the start of a trans-Atlantic war over privacy? Stay tuned!

How a single Whois complaint got this registrar shitcanned

Kevin Murphy, August 15, 2018, Domain Registrars

A British registrar has had its ICANN contract terminated after a lengthy, unprecedented fight instigated by a single complaint about the accuracy of a single domain’s Whois.

Astutium, based in London and with about 5,000 gTLD domains under management, finally lost its right to sell gTLD domains last week, after an angry battle with ICANN Compliance, the Ombudsman, and the board of directors.

While the company is small, it does not appear to be of the shady, fly-by-night type sometimes terminated by ICANN. Director Rob Golding has been an active face at ICANN for many years and Astutium has, with ICANN approval, taken over portfolios from other de-accredited registrars in the past.

Nevertheless, its Registrar Accreditation Agreement has been torn up, as a result of a complaint about the Whois for the domain name tomzink.com last December.

Golding told DI today that he considers the process that led to his de-accreditation broken and that he’s considering legal action.

The owner of tomzink.com and associated web site appears to be a Los Angeles-based music producer called Tom Zink. The web site seems legit and there’s no suggestion anywhere that Zink has done anything wrong, other than possibly filling out an incomplete Whois record.

The person who complained about the Whois accuracy, whose identity has been redacted from the public record and whose motives are still unclear, had claimed that the domain’s Whois record lacked a phone and fax number and that the registrant and admin contacts contained “made-up” names.

Historical Whois records archived by DomainTools show that in October last year the registrant name was “NA NA”.

The registrant organization was “Astutium Limited” and the registrant email was an @astutium.com address. The registrant mailing address was in Long Beach, California (the same as Zink). There were no phone/fax numbers in the record.

Golding told DI that some of these details were present when the domain was transferred in from another registrar. Others seem to have been added because the registrar was looking after the name on behalf of its client.

The admin and technical records both contained Astutium’s full contact information.

Following the December complaint, the record was cleaned up to remove all references to Astutium and replace them with Zink’s contact data. Judging by DomainTools’ records, this seems to have happened the same day as ICANN forwarded the complaint to Astutium, December 20.

So far, so normal. This kind of Whois cleanup happens many times across the industry every day.

But this is where relations between Astutium and ICANN began to break down, badly.

Even though the Whois record had been cleaned up already, Golding responded to Compliance, via the ICANN complaints ticketing system:

Please dont forward bigus/meaningless whois complaints which are clearly themselves totally inaccurate… No action is necessary or will be taken on bogus/incomplete/rubbish reports. [sic]

Golding agreed with me today that his tone was fairly belligerent from the outset, but noted that it was far from the first time he’d received a compliance complaint he considered bogus.

In the tomzink.com case, he took issue with the fact that the complainant had said that the admin/tech records contained no fax number. Not only was this not true (it was Astutium’s own fax number), but fax numbers are optional under ICANN’s Whois policy.

He today acknowledges that some parts of the complaint were not bogus, but notes that the Whois record had been quickly updated with the correct information.

But simply changing the Whois record is not sufficient for ICANN. It wants you to show evidence of how you resolved the problem in the form of copies of or evidence of communications with the registered name holder.

The Whois Accuracy Program Specification, which is part of the RAA, requires registrars to verify and validate changes to the registered name holder either automated by phone or email, or manually.

Golding told DI that in this case he had called the client to advise him to update his contact information, which he did, so the paper trail only comprises records of the client logging in and changing his contact information.

What he told ICANN in January was:

If ICANN compliance are unable to do the simple job they have been tasked with (to correctly vet and format the queries before sending them on, as they have repeatedly agreed they will do *on record* at meetings) then Registrars have zero obligations to even look at them. Any ‘lack of compliance’ is firmly at your end and not ours in this respect.

However in this specific case we chose to look, contacted the registrant, and had them update/correct/check the records, as can easily be checked by doing a whois

ICANN then explained that “NA NA” and the lack of a phone number were legitimate reasons that the complaint was not wholly bogus, and again asked Golding to provide evidence of Astutium’s correspondence with Zink.

After ignoring a further round or two of communication via the ticketing system, Golding responded: “No, we don’t provide details of private communications to 3rd parties”.

He reiterated this point a couple more times throughout February, eventually saying that nothing in WAPS requires Astutium to “demonstrate compliance” by providing such communications to ICANN, and threatening to escalate the grievance to the Ombudsman.

(That may be strictly true, but the RAA elsewhere does require registrars to keep records and allow ICANN to inspect them on demand.)

It was around the same time that Compliance started trying to get in touch with Golding via phone. While it was able to get through to the Astutium office landline, Compliance evidently had the wrong mobile phone number for Golding himself.

Golding told DI the number ICANN was trying to use (according to ICANN it’s the one listed in RADAR, the official little black book for registrars) had two digits transposed compared to his actual number, but he did not know why that was. Several other members of ICANN staff have his correct number and call him regularly, he said.

By February 27, Compliance had had enough, and issued Astutium with its first public breach notice (pdf)

Allowing a compliance proceeding to get to this stage is always bad news for a registrar — when ICANN hits the public breach notice phase, staff go out and actively search for other areas of potential non-compliance.

Golding reckons Compliance staff are financially incentivized, or “get paid by the bullet point”, at this stage, but I have no evidence that is the case.

Whatever the reason, Compliance in February added on claims:

  • that Astutium was failing to output Whois records in the tightly specified format called for by the RAA (Golding blames typos and missed memos for this and says the errors have been corrected),
  • that Astutium’s registration agreement failed to include renewal and post-renewal fees (Golding said every single page of the Astution web site, including the registration agreement page, carries a link to its price list. While he admitted the text of the agreement does not include these prices, he claimed the same could be said of some of the biggest registrars),
  • that the registration agreement does not specify how expiration notices are delivered (according to Golding, the web site explains that it’s delivered via email)
  • that the address published on the Astutium web site does not match the one provided via the Registrar Information Specification, another way ICANN internally tracks contact info for its registrars (Golding said that his company’s address is published on every single page of its site)

A final bullet point asked the company to implement corrective measures to ensure it “will respond to ICANN compliance matters timely, completely and in line with ICANN’s Expected Standards of Behavior”.

The reference to the Expected Standards of Behavior — ICANN’s code of politeness for the community — is a curious one, not typically seen in breach notices. Unless I’m reading too much into it, it suggests that somebody at ICANN wasn’t happy with Golding’s confrontational, sometimes arguably condescending, attitude.

Golding claims that some of ICANN’s allegations in this breach notice are “provably false”.

He told us he still hasn’t ruled out legal action for defamation against ICANN or its staff as a result of the publication of the notice.

“I’ll be in California, serving the paperwork myself,” he said.

Astutium did not respond to the breach notice, according to ICANN documents, and it was escalated to full-blown termination March 21.

On March 30, the registrar filed a Request for Reconsideration (pdf) with ICANN. That’s one of the “unprecedented” things I referred to at the top of this article — I don’t believe a registrar termination has been challenged through the RfR process before.

The second unprecedented thing was that the RfR was referred to Ombudsman Herb Waye, under ICANN’s relatively new, post-transition, October 2016 bylaws.

Waye’s evaluation of the RfR (pdf), concluded that Astutium was treated fairly. He noted multiple times that the company had apparently made no effort to come into compliance between the breach notice and the termination notice.

Golding was not impressed with the Ombudsman’s report.

“The Ombudsman is totally useless,” he said.

“The entire system of the Ombudsman is designed to make sure nobody has to look into anything,” he said. “He’s not allowed to talk to experts, he’s not actually allowed to talk to the person who made the complaint [Astutium], his only job is to ask ICANN if they did the right thing… That’s their accountability process.”

The Board Accountability Mechanisms Committee, which handles reconsideration requests, in June found against Astutium, based partly on the Ombudsman’s evaluation.

BAMC then gave Golding a chance to respond to its decision, before it was sent to the ICANN board, something I believe may be another first.

He did, with a distinctly more conciliatory tone, writing in an email (pdf):

Ultimately my aim has always been to have the ‘final decision’ questioned as completely disproportionate to the issue raised… and the process that led to the decisions looked into so that improvements can be made, and should there still be unresolved issues, opportunity to work in a collaborative method to solve them, without the need to involve courts, lawyers, further complaints/challenge processes and so on.

And then the ICANN board voted to terminate the company, in line with BAMC’s recommendation.

That vote happened almost a month ago, but Astutium did not lose its IANA number until a week ago.

According to Golding, the company is still managing almost all of its gTLD domains as usual.

One registry, CentralNic, turned it off almost immediately, so Astutium customers are not currently able to manage domains in TLDs such as .host, he said. The other registries still recognize it, he said. (CentralNic says only new registrations and transfers are affected, existing registrants can manage their domains.)

After a registrar termination, ICANN usually transfers the affected domains to another accredited registrar, but this has not happened yet in Astutium’s case.

Golding said that he has a deal with fellow UK registrar Netistrar to have the domains moved to its care, on the understanding that they can be transferred back should Astutium become re-accredited.

He added that he’s looking into acquiring three other registrar accreditations, which he may merge.

So, what is to be learned from all this?

It seems to me that we may be looking at a case of a nose being cut off to spite a face, somebody talking themselves into a termination. This is a compliance issue that probably could have been resolved fairly quickly and quietly many months ago.

Another takeaway might be that, if the simple act of making a phone call to a registrar presents difficulties, ICANN’s Compliance procedures may need a bit of work.

A third takeaway might be that ICANN Compliance is very capable of disrupting registrars’ businesses if they fail to meet the letter of the law, so doing what you’re told is probably the safest way to go.

Or, as Golding put it today: “The lesson to be learned is: if you don’t want them fucking with your business, bend over, grab your ankles, and get ready.”

ICANN closes GoDaddy Whois probe

Kevin Murphy, August 9, 2018, Domain Registrars

ICANN has closed its investigation into GoDaddy’s Whois practices with no action taken.

Senior VP of compliance Jamie Hedlund yesterday wrote to David Redl, head of the US National Telecommunications and Information Administration, to provide an update on the probe, news of which first emerged in April.

The NTIA and members of the intellectual property community had complained that GoDaddy was throttling Whois access over port 43 and that it was masking certain fields in the output.

That was when GoDaddy and the rest of the ICANN-regulated industry was working under the old rules, before the new temporary Whois policy had been introduced to comply with the EU General Data Protection Regulation.

Hedlund told Redl in a letter (pdf):

Based on our review and testing (including outside of ICANN’s network), GoDaddy is not currently masking WHOIS data or otherwise limiting access to its WHOIS services. Consequently, the complaints related to GoDaddy’s masking of certain WHOIS fields, rate limiting, and whitelisting of IP addresses have been addressed and closed.

GoDaddy had said earlier this year that it was throttling access over port 43 in an attempt to reduce the availability of Whois data to the spammers that have been increasingly plaguing its customers with offers of web site development and search engine optimization services.

No Verfügungsanspruch for ICANN in GDPR lawsuit

Kevin Murphy, August 7, 2018, Domain Policy

ICANN has lost its latest attempt to use the German courts to force Tucows to continue to collect Whois records the registrar thinks are unnecessary.

In an August 1 ruling, a translation of which (pdf) has been published by ICANN, the court ruled that no preliminary injunction (or “Verfügungsanspruch”) was necessary, because ICANN has not shown it would suffer irreparable harm without one.

ICANN wants Tucows’ German subsidiary EPAG to carry on collecting the Admin-C and Tech-C fields of Whois, even though the registrar thinks that would make it fall foul of Europe’s new General Data Protection Regulation.

The organization has already had two adverse decisions at a lower court, and the appeals court‘s latest ruling does not change anything. The judge ruled:

The Applicant [ICANN] has already not demonstrated that a preliminary injunction is required in order to avoid substantial disadvantages. To the extent the Applicant submitted in its application that interim relief was necessary in order to avert irreparable harm by arguing that the data to be collected would otherwise be irretrievably lost, this is not convincing. The Defendant [EPAG] could at a later point collect this data from the respective domain holder by a simple inquiry, provided that an obligation in this regard should be established.

The court also declined to refer the case to the European Court of Justice, as ICANN had wanted, because nothing in the ruling required GDPR to be interpreted.

This a a blow, because the whole point of the lawsuit is for ICANN and registrars to get some clarity on what the hell GDPR actually requires when it comes to Whois.

ICANN said it is “considering its next steps, including possible additional filings before the German courts”, noting that the “main proceedings” of the case are still ahead of it.

Fight over Whois access starts early

Kevin Murphy, August 3, 2018, Domain Policy

Starting as they mean to go on? The new ICANN working group on Whois this week saw early, if predictable, divisions on the issue of access to private data in a post-GDPR world.

The so-called Whois EPDP (for Expedited Policy Development Process) held its first teleconference on Wednesday and while not really getting around to the nitty-gritty of policy managed to quickly start squabbling about its schedule and rules of engagement.

It’s already not looking promising that blanket cross-community consensus is going to be reached in the time permitted.

The group is tasked with turning the current Temporary Specification for Whois, which was created by the ICANN board of directors, into a formal consensus policy that in principle has the support of the whole community.

Group chair Kurt Pritz laid out three targets for the group.

First up is a “triage” document, which will basically see the community decide, line by line, what it likes and does not like about the Temp Spec.

In theory, the EPDP could just rubber-stamp the whole shebang and be done with it, but that’s highly unlikely.

Second is an Initial Report, which will include the agreements reached in the triage document and the agreements reached in subsequent discussions.

That’s due in October at ICANN’s meeting in Barcelona, which is ambitious but not necessarily impossible.

The Temp Spec was written with guidance from lawyers and European data protection authorities, so there’s a limit to how far the EPDP can stray, in my view.

Thirdly, and most controversially, is an “Initial Report outlining a proposed model of a system for providing accredited access to non-public Registration Data.”

This is the proposed standardized system that will allow security and intellectual property interests, and possibly others, to see unredacted Whois data like we all could just a few months ago.

Many stakeholder groups are in favor of such a system, but the Non-Commercial Stakeholders Group are decidedly not.

The NCSG, given voice principally by academic Milton Mueller, objected to the Pritz/ICANN plan to start soliciting comments on access from the EPDP group later this month, before the group has come to consensus on the so-called “gating questions”.

The gating questions are rather less thorny issues such as whether the purposes registrars collect personal data as mandated by the Temp Spec are in fact legitimate under the GDPR and what data should be transferred from registrars to their registries.

Mueller said that the gating issues represent a “crisis situation” — the EPDP group has just a few months to come to consensus on which parts of the Temp Spec it agrees with — and that discussions about access can be safely pushed back until later.

Perhaps predicting an impasse in future, he also warned Pritz not to over-sell the level of consensus the group reaches if there are still dissenting voices at the end of the process.

Mueller yesterday told the group that NCSG — there are six members on the EPDP team — will refuse to engage on the access issue until consensus had been found on the gating issues.

But NCSG faced push-back from pro-access groups including the Business Constituency, Governmental Advisory Committee and At-Large Advisory Committee.

Alan Greenberg of the ALAC said access talks are “really important” and intertwined with the gating questions. Groups may change their positions on one set of questions based on the discussions of the other, he said.

As it stands today, the group has been asked to fill out four sets of questionnaires, polling their support for various parts of the Temp Spec, over the next few weeks.

The controversial fourth questionnaire covers the access model, but ICANN staff facilitating the group have assured the NCSG these responses will be essentially sat on until the working group is ready to address them.

The group is planning twice-weekly teleconferences in its effort to get its first and second deliverables ready in time for Barcelona.

These 33 people will decide the future of Whois

Kevin Murphy, July 31, 2018, Domain Policy

The names of the people who will decide the future of global gTLD Whois policy have been revealed.

Twenty-nine of 33 open seats of the GNSO’s Expedited Policy Development Process on the Temporary Specification for gTLD Registration Data are now filled and their occupants known.

The EPDP group is tasked with, in just a few short months, coming up with a permanent replacement for ICANN’s Temporary Specification for Whois in a post-GDPR world.

While 33 might seem like a lot of people, it’s a far cry from the over 100 involved in previous Whois working groups, kept deliberately small in order to meet the EPDP’s aggressive deadlines.

As you might expect, there are some members that we can safely rely on to fight for an interpretation of GDPR weighted heavily towards privacy rights, balanced against many others who will certainly fight for “legitimate purposes” data access rights for law enforcement, security and intellectual property interests.

The makeup of the group is heavily North American, with hardly any representation from Asia or Latin America.

By my count, there are 17 members from North America, seven people based in Europe (one of whom represents the Iranian government), two Africans, and one body each from Australia, Japan, and Argentina.

Contrary to the EPDP charter, and DI’s previous coverage, there are no members of the ccNSO on the group. It also appears as if the two seats reserved for root server operators will go unfilled.

As previously reported, the group is being chaired by Kurt Pritz, who works for the .art registry operator but is best known as a former ICANN senior VP.

These are the other members, grouped by their respective factions.

Registries Stakeholder Group

Alan Woods. He’s Donuts’ senior policy and compliance manager and has been since 2014. Donuts is of course the registry with the largest portfolio of commercial, open gTLDs, running about 300 of them.

Marc Anderson. Verisign’s product manager in charge of systems including SRS and Whois. Whatever policy is ultimately handed down, he’ll be in charge of implementing it at .com and .net, among other TLDs. As the only major example of a “thin” gTLD registry operator, Verisign handles a lot less personal data than any other gTLD registry.

Kristina Rosette. She’s a lawyer with a background in IP, working for Amazon, which holds a portfolio of gTLDs most of which remain unlaunched. An example of the GNSO’s ongoing game of musical chairs, she used to be a leading voice in the Intellectual Property Constituency.

Registrars Stakeholder Group

James Bladel. Vice president of global policy at GoDaddy, which in its implementation of GDPR has erred towards publishing more data, not less. As the largest registrar, GoDaddy is a rare example of a registrar with the resources to make its implementation more granular, allowing it to differentiate between EU and non-EU customers and continue to have a value proposition for its paid-for privacy services.

Matt Serlin. Formerly with brand protection registrar MarkMonitor, he’s the founder of startup rival BrandSight. It probably goes without saying that the brand protection side of the RrSG does not necessarily have the same interests as retail registrars. GDPR does not affect big trademark-holding corporations in terms of their own Whois records (GDPR only applies to “natural persons”), but it does affect their ability to go after cybersquatters.

Emily Taylor. As well as a policy consultant and a former Nominet bigwig, she’s a director of the small UK registrar Netistrar but says “my business interests also cover intellectual property / brand protection, and non-commercial interests such as freedom of expression, privacy and human rights”. She chaired an earlier Whois Review Team, which published a report in 2012 that was ultimately basically ignored by ICANN

Intellectual Property Constituency

Alex Deacon. While recently independent, he still represents the Motion Picture Association of America, one of the biggest copyright interests out there and until April his direct employer.

Diane Plaut. Seemingly a relative newcomer to ICANN, she’s “Global General Counsel and Data Protection and Privacy Officer” for a company called Corsearch, which provides database services for trademark owners. In an April blog post, she wrote that it is “essential” that trademark owners should continue to have access to private Whois data.

Business Constituency

Margie Milam. Head of domain strategy at Facebook, which is currently lobbying ICANN to start forcing registrars to reveal private data to trademark interests, as we reported last week.

Mark Svancarek. Newly installed as “Principal Program Manager – Tech Policy / Internet Governance” at Microsoft, which has said that it thinks privacy is a “fundamental human right”. Make no mistake, however, Microsoft reckons Whois data should carry on being made available to those investigating cybercrime or intellectual property infringement, as it outlined in a recent letter to ICANN (pdf).

Internet Service and Connection Providers Constituency

Esteban Lescano. Partner at the Argentinian law firm Lescano & Etcheverry, which counts online trademark protection as one of many areas of specialization, he’s also director of the policy and legal affairs committee at trade group CABASE, the Argentine Internet Association.

Thomas Rickert. Lawyer Rickert is head of domains at German trade group eco, but perhaps more significantly his law firm is representing Tucows subsidiary EPAG in its lawsuit with ICANN, in which ICANN accuses EPAG of breaching its contract by threatening to stop collecting certain Whois data elements. He’s very much on the pro-privacy side of the debate.

Non-Commercial Stakeholders Group

Stephanie Perrin. President of her own company, Digital Discretion, she consults on privacy issues. Unambiguously on the pro-privacy side of the house.

Ayden Ferdeline. A Germany-based independent consultant, Ferdeline is, like Perrin, firmly pro-privacy.

Milton Mueller. An ICANN veteran, Mueller is a professor at the Georgia Institute of Technology and founder of the Internet Governance Project. About as pro-privacy as it gets.

Johan “Julf” Helsingius. Chairman of BaseN, an “internet of things” services provider, Helsingus has form when it comes to privacy protection. His Wikipedia entry is dominated by his pro-privacy activities, including a 1996 fight against the Church of Scientology, which wanted him to reveal the identities of his customers.

Amr Elsadr. Egyptian consultant Elsadr also has a track record of talking up privacy rights at ICANN.

Farzaneh Badiei. Executive director at the Internet Governance Project and researcher at Georgia Tech, Badiei, alongside colleagues Mueller and Ferdeline, has been regularly vocal about the need for privacy in Whois.

Governmental Advisory Committee

Georgios Tselentis. As the representative of the European Commission, one might reasonably expect Tselentis to be rather pro-GDPR.

Ashley Heineman. She represents the US on the GAC. The US is very strongly of the belief that Whois access should be reinstated for intellectual property and security interests.

Kavouss Arasteh. Iran’s GAC rep, we could be looking at the WG’s deadline wild card here. I’ve no idea what Iran’s position is on GDPR, but there are few topics at ICANN upon which Arasteh has not spoken strongly, and at length.

At-Large Advisory Committee

Alan Greenberg. He chairs the ALAC, which is in favor of a well-regulated accreditation program that allows law enforcement and IP interests to access Whois.

Hadia Elminiawi. Elminiawi works at the National Telecom Regulatory Authority of Egypt. She did not vote on the ALAC position paper on Whois/GDPR.

Security and Stability Advisory Committee

Benedict Addis. Formerly in UK law enforcement, Addis chairs the Registrar of Last Resort, a non-profit registrar that quarantines abusive domain names.

Ben Butler. Director of global policy at GoDaddy, focused on abuse, I wouldn’t expect his position to differ wildly from that of colleague Bladel.

Root Server System Advisory Committee

While two seats have been reserved for the RSSAC, the committee has not yet put any bodies forward to occupy them, presumably because the root server operators don’t collect personal data from registrants and don’t really have a horse in this race.

Liaisons

The ICANN board of directors has two liaisons on the WG — Chris Disspain and Leon Felipe Sanchez. The GNSO Council liaison is Rafik Dammak. There are expected to be two ICANN staff liaisons, but they have not yet been named.

The EPDP mailing list opened up yesterday and will hold its first teleconference tomorrow.

Facebook clashes with registrars after massive private data request

Kevin Murphy, July 26, 2018, Domain Policy

Facebook is on the warpath, testing the limits of personal data disclosure in the post-GDPR world.

Via an intermediary called AppDetex, the company recently filed 500 requests for non-public Whois contact information with various registrars, covering potentially thousands of domains, and is now complaining to ICANN that almost all of the replies it received were “non-responsive”.

DI has learned that Facebook is not only asking registrars for Whois data on specific domains it believes infringe its trademarks, however. It’s also asking them to provide complete lists of domains owned by the same registrant, along with the Whois data for those domains, something registrars have never been obliged to provide, even pre-GDPR.

It’s now pissed that almost all of its requests were blown off, with registrars giving various reasons they could not provide the data.

AppDetex is a brand protection services firm and ICANN-accredited registrar. It’s built an automated system for generating Whois disclosure requests and sending them to registrars.

Ben Milam, its general counsel, wrote to ICANN last week to urge the organization to come up with, and more importantly enforce, a framework for brand owners to request private Whois data.

The company has stopped short of filing formal complaints against the registrars with ICANN’s compliance division, but Milam said it will in future:

we do plan to file complaints in the future, but not until ICANN has (i) established proper disclosure guidelines for non-public WHOIS requests for the registrar base to follow, and (ii) implemented an enforcement process that will ensure that brand holder requests are being satisfied.

The letter says that only one registrar responded adequately, to three of its disclosure requests. That was FBS Inc, which I believe is Turkey’s largest registrar. Turkey is not in the EU.

One registrar on Facebook’s naughty list is Ireland-based Blacknight Solutions, which received three disclosure requests but did not provide AppDetex with the information it wanted.

Blacknight CEO Michele Neylon shared a copy of one of these requests, which he said was received via email July 2, with DI.

In my view, the request is clearly automated, giving the registrar a deadline to respond 48 hours in the future accurate to the second. It cites five Facebook trademarks — Facebook, FB, Instagram, Oculous and WhatsApp.

At Blacknight’s request, I won’t disclose the domain here, but it begins with the string “insta”. At first glance it’s not an clear-cut case of cybersquatting the Instagram trademark. It’s currently parked, displaying ad links unrelated to Instagram.

The email asks the registrar to turn over the full non-public Whois contact information for the registrant, technical contact and administrative contact, but it goes on to also ask for:

4. All other domain names registered under this registrant’s account or email address

5. All information in requests 1, 2, and 3 for all domains provided in response to request 4

This would increase the volume of Whois records requested by Facebook from 500 to, very probably, thousands.

This reverse-Whois data was not previously available via vanilla registrar-provided Whois, though it may be under successor protocol RDAP. Brand owners would have to use a commercial third-party service such as DomainTools in order to connect a registrant to the rest of his portfolio.

It’s debatable whether registrars will be obliged to provide this reverse-Whois capability on non-public data to brand owners even after RDAP becomes the norm.

The request says Facebook needs the data in order “to investigate and prevent intellectual property infringement and contact infringing parties and relevant service providers” and “to facilitate legal action against the registrant”.

Facebook says it’s entitled to the data under Article 6(1)(f) of the GDPR as it’s “necessary for the purposes of our legitimate interests, namely (1) identifying the registered holder of a domain name and their contact information to investigate and respond to potential trademark infringement and (2) enforcing legal claims.”

Currently, registrars are governed by ICANN’s Temporary Specification for Whois, a GDPR-related Band-Aid designed to last until the ICANN community can create a formal policy.

Access to non-public Whois data is governed by section 4 of the Temp Spec, which reads in part:

Registrar and Registry Operator MUST provide reasonable access to Personal Data in Registration Data to third parties on the basis of a legitimate interests pursued by the third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the Registered Name Holder or data subject pursuant to Article 6(1)(f) GDPR.

In the absence of a formal ICANN policy, legal precedent, or specific guidance from data protection authorities, it’s not abundantly clear how registrars are supposed to comply with this clause of the spec, which may explain why Facebook is getting different responses from different registrars.

Neylon said that Blacknight responded to the disclosure requests by asking Facebook to produce an Irish court order.

He said the requests were overly broad, did not provide any contact information for the requester, did not provide a specific complaint against the registrants, and did not specify what privacy safeguards Facebook planned to subject the data to once it was handed over.

It seems Blacknight was not alone. According to AppDetex’s letter to ICANN, at least six other registrars replied denying the requests and saying:

complainant (Facebook) must utilize legal process of a subpoena or court order; complainant must file a UDRP action; complainant must file an action with WIPO; complainant must contact WIPO; and/or complainant’s request has been forwarded to the domain owner.

Milam said (pdf) that he expects the volume of requests to increase and that registrars’ responses will be forwarded to ICANN Compliance to help create a normalized framework for dealing with such requests.

ICANN’s GDPR lawsuit bounced up to appeals court

Kevin Murphy, July 24, 2018, Domain Policy

ICANN’s lawsuit against Tucows’ German subsidiary EPAG has been bounced up to a higher court in Cologne.

The suit seeks to force Tucows to continue to collect the Admin-C and Tech-C fields of the Whois spec, something which is required by the Registrar Accreditation Agreement but which Tucows argues would force it to breach the General Data Protection Regulation.

The court of first instance denied ICANN’s application for an injunction.

ICANN then appealed, suggesting that the case should be referred to the European Court of Justice for a definitive answer.

Instead, the Bonn “Regional Court” has referred the case to the “Higher Regional Court” in Cologne. ICANN said the ECJ referral is still a possibility, however.

The lower court did not change its original ruling, but nor did it consider ICANN’s new arguments, which will transfer to the higher court’s attention, according to ICANN.

If you want a migraine to match mine, you can read an ICANN-provided English translation of the latest ruling here (pdf).

Is the new Whois policy group already doomed to fail?

Kevin Murphy, July 24, 2018, Domain Policy

ICANN’s Generic Names Supporting Organization has set itself extremely aggressive, some might say impossible, targets for its emergency Whois policy work.

The GNSO Council on Thursday approved the charter for a new working group that will attempt to come up with a consensus policy for how to amend the Whois system in light of the EU’s General Data Protection Regulation.

But the vote was not unanimous — three of the six Non-Commercial Stakeholder Group councilors abstained largely because they think intellectual property interests have managed to capture the discussion before it has begun.

The three abstentions were independent consultant Ayden Ferdeline, cybersecurity policy researcher Tatiana Tropina, and privacy consultant Stephanie Perrin.

Tropina said during the Thursday meeting: “I cannot vote ‘yes’ for a document that in my opinion has parts that are not properly worded and, instead of setting the scope of the EPDP [Expedited Policy Development Process] work, set up multiple possibilities to get the work sidetracked.”

She and Ferdeline pointed specifically to section J of the approved charter (pdf), which addresses “reasonable access” to non-public Whois data.

This is the part of the policy work that will decide whether, and to what extent, entities such as trademark owners and cybersecurity researchers will be able to peek behind the curtain of post-GDPR personal data redactions and see who actually owns domain names.

There are several “gating” questions that the working group must answer before it gets to J, however, such as: what data should be collected by registrars, how data transfer to registries should be handled, and are the reasons for this data to be collected all valid?

But when it comes to section J, the abstaining NCSG councilors reckon that the Intellectual Property Community has managed to sneak in the notion that its members should get access to private data as a fait accompli. Section J reads in part:

What framework(s) for disclosure could be used to address (i) issues involving abuse of domain name registrations, including but not limited to consumer protection, investigation of cybercrime, DNS abuse and intellectual property protection, (ii) addressing appropriate law enforcement needs, and (iii) provide access to registration data based on legitimate interests not outweighed by the fundamental rights of relevant data subjects?

Ferdeline said in his abstention:

I believe that Section J includes, first and foremost, questions that unnecessarily expand the scope of this EPDP and put perceived answers — rather than genuine, open ended questions — into this important document. Overall I think this section of the charter’s scope is unnecessary and will not allow the EPDP team to complete their work in a timely manner.

Tropina said J “poses the questions that, first of all, imply by default that issues related to intellectual property protection and consumer protection require the disclosure of personal data”, adding that she was bewildered that IP interests had been lumped in with security concerns:

This wording fails me: as I am criminal lawyer working in the field of frameworks for cybercrime investigation, I do not see why cybercrime investigations are separated from law enforcement needs and go to the same basket with intellectual property protection as they are on a completely different level of legitimate demands

In short, the newly approved EPDP charter has been framed in such a way as to make discussions extremely fractious from the outset, pitting privacy interests against those of the trademark lobby on some of the most divisive wedge issues.

This is problematic given that the working group has an extremely aggressive schedule — its members have not yet even been named and yet it expects to produce its Initial Report shortly after ICANN 63, which ends October 25 this year.

It’s an absurdly short space of time to resolve questions that have dogged ICANN for almost two decades.

Will this pressure to come to agreement against the clock work in favor of the trademark community, or will it doom the policy-making process to deadlock?

Attempting to steer the WG through this minefield will be Kurt Pritz, who was confirmed by the Council as its neutral chair on Thursday, as DI first reported a week ago.

The make-up of the group has also proved contentious.

While it is a GNSO process that would lead to a Consensus Policy binding on all gTLD registries and registrars, the decision has been made to bring in voices from other areas of the community, such as the Country Code Names Supporting Organization, which will not be directly affected by the resulting policy.

There will be 29 members in total, not counting the non-voting chair.

The GNSO gets 18 of these seats at the table, comprising: three registries, three registrars, two IPC members, two ISPs, two Business Constituency members, six NCSG members (which, I imagine would be split between the privacy-focused NCUC and more IP-friendly NPOC).

But also joining the group on an equal footing will be two members of the Root Server System Advisory Committee (I’ve no idea why), two from the Security and Stability Advisory Committee, two from the ccNSO, two from the At-Large Advisory Committee and three from the Governmental Advisory Committee.

The actual individuals filling these seats will be named by their respective constituencies in the next few days, ahead of the first WG meeting July 30.

It has been said that these people could expect to devote north of 30 hours a week (unpaid of course, though any necessary travel will be comp’d) to the discussions.

Pritz to be named chair of Whois group

Kevin Murphy, July 16, 2018, Domain Policy

Former ICANN senior vice president Kurt Pritz is expected to be named chair of the group tasked with reforming Whois in the post-GDPR world.

Sources familiar with the situation tell DI that Pritz was selected from three candidates who put themselves forward for the grueling policy-making task.

I’m told that choice was made by GNSO Council’s leadership and selection committee (minus Pritz’s wife, Donna Austin, who recused herself) and will have to be confirmed by the full Council when it meets this Thursday.

Pritz would chair the GNSO’s first-ever Expedited Policy Development Process working group, which is expected to provide an ICANN community response to ICANN org’s recent, top-down Temporary Specification for Whois.

The Temp Spec, written by ICANN in response to the GDPR privacy law, is the thing that is contractually forcing all gTLD registries and registrars to redact personal information from their public Whois records.

Because it’s temporary, it will expire May 24 next year, one year after it came into effect.

The EPDP will put the force of community consensus behind the policy that replaces it, but it’s unlikely to differ a great deal from the Temp Spec, so it would be unwise to get your hopes up that Whois will return to pre-GDPR levels of accessibility — ICANN policy cannot overrule the law.

The EPDP chair’s job is expected to be extremely taxing. During the recent ICANN meeting in Panama, it was said that regular, non-chair working group members could be expected to commit as much as 30 hours a week to the project.

ICANN expects that the EPDP’s core work should be complete before ICANN 63, which begins October 20, with its final report due next February.

Given that the ICANN community has failed to come to much consensus on anything Whois related for two decades, these are extremely aggressive targets.

To maintain focus, the EPDP group is going to be kept relatively small, but there’s still bickering about the make-up of the group, with non-commercial interests upset the commercial side of house is getting more representation.

The chair’s role was therefore potentially controversial — neutrality was seen as a key quality when ICANN advertised the gig a couple of weeks ago.

Pritz currently works for the .art new gTLD registry operator UK Creative Ideas, so technically he would be in the Registries Stakeholder Group.

But he’s also one of the key architects of the new gTLD program, ICANN’s point man on the application process before his resignation in late 2012, so he has extensive experience herding cats in a relatively neutral way.

Since then, he’s had stints as a consultant and as executive director of the Domain Name Association.