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Court denies ICANN’s GDPR injunction against Tucows

Kevin Murphy, May 31, 2018, Domain Policy

A German court has refused ICANN’s request for a GDPR-related injunction against Tucows’ local subsidiary EPAG, throwing a key prong of ICANN’s new Whois policy into chaos.

EPAG now appears to be free to stop collecting contact information for each domain’s administrative and technical contacts — the standard Admin-C and Tech-C fields.

The ruling may even leave the door open for registrars to delete this data from their existing Whois databases, a huge blow to ICANN’s Whois compliance strategy.

According to an ICANN-provided English translation of the ruling (pdf), the Bonn judges (whose names are redacted — another win for GDPR?) decided that the Admin-C and Tech-C records are unnecessary, because they can be (and usually are) the same person as the registrant.

The judges said that if the additional contact names were needed, it would have historically been a condition of registration that three separate people’s data was required.

They wrote that this “is proof that any data beyond the domain holder — different from him — was not previously necessary”.

“Against the background of the principle of data minimization, the Chamber is unable to see why further data sets are needed in addition to the main person responsible,” they wrote.

Data minimization is a core principle of GDPR, the General Data Protection Regulation, which came into force in the EU less than a week ago. Tucows and ICANN have different interpretations on how it should be implemented.

The judges said that the registrant’s contact information should be sufficient for any criminal or security-related investigations, which had been one of ICANN’s key claims.

They also said that ICANN’s attempt to compare Whois to public trademark databases was irrelevant, as no international treaties govern Whois.

If the ruling stands, it means registries and registrar in at least Germany could no longer have to collect Admin-C and Tech-C contacts.

Tucows had also planned to delete this data for its existing EPAG registrations, but had put its plan on hold ahead of the judge’s ruling.

The ruling also gives added weight to the part of ICANN’s registry and registrar agreements that require contracted parties to abide by local laws.

That’s at the expense of the new Temporary Policy governing Whois introduced two weeks ago, which still requires Admin-C and Tech-C data collection.

There was no word in ICANN’s statement on the ruling last night as to the possibility of appealing.

But the org seized on the fact that the ruling does not directly state that EPAG would be breaching GDPR rules by collecting the data. General counsel John Jeffrey is quoted as saying:

While ICANN appreciates the prompt attention the Court paid to this matter, the Court’s ruling today did not provide the clarity that ICANN was seeking when it initiated the injunction proceedings. ICANN is continuing to pursue the ongoing discussions with the European Commission, and WP29 [the Article 29 Working Party], to gain further clarification of the GDPR as it relates to the integrity of WHOIS services.

Tucows has yet to issue a statement on the decision.

It may not be the last time ICANN resorts to the courts in order to seek clarity on matters related to GDPR and its new Temporary Policy.

Million-euro Tucows GDPR lawsuit may not be ICANN’s last

Kevin Murphy, May 29, 2018, Domain Policy

ICANN has filed a lawsuit against a Tucows subsidiary in Germany in an effort to resolve a disagreement about how new European privacy law should be interpreted, and according to ICANN’s top lawyer it may not be the last.

The organization said late Friday that it is taking local registrar EPAG to court in Bonn, asking that the registrar be forced to continue collecting administrative and technical contact information for its Whois database.

According to an English translation of the motion (pdf), and to conversations DI had with ICANN general counsel John Jeffrey and Global Domains Division president Akram Atallah over the weekend, ICANN also wants an injunction preventing Tucows from deleting these fields from current Whois records.

At its core is a disagreement about how the new General Data Protection Regulation should be interpreted.

Tucows plans to continue collecting the registrant’s personal information, but it sees no reason why it should also collect the Admin-C and Tech-C data.

Policy director Graeme Bunton argues that in the vast majority of cases the three records are identical, and in the cases they are not, the registrar has no direct contractual relationship with the named individuals and therefore no business storing their data.

ICANN counters that Admin-C and Tech-C are vital when domain owners need to be contacted about issues such as transfers or cyber-attacks and that the public interest demands such records are kept.

Its new Temporary Policy — which is now a binding contractual commitment on all registries and registrars — requires all this data to be collected, but Tucows feels complying with the policy would force it to break European law.

“Strategically, we wanted to make sure we don’t let the Whois and the pubic interest get harmed in a way that can’t be repaired,” Atallah said.

“The injunction is to actually stop any registrar from not collecting all the data and therefore providing the opportunity for the multistakeholder model to work and come up with a long-term plan for Whois,” he said. “”We don’t want to have a gap.”

Jeffrey said that the suit was also necessary because ICANN has not received sufficient GDPR guidance from data protection authorities in the EU.

EPAG is not the only registrar planning to make the controversial changes to data collection. There are at least two others, at least one of which is based in Germany, according to Jeffrey and Atallah.

The German ccTLD registry, DENIC, is not under ICANN contract but has also said it will no longer collect Admin-C and Tech-C data.

They may have all taken their lead from the playbook (pdf) of German industry group eco, which has been telling ICANN since at least January that admin and tech contacts should no longer be collected under GDPR.

That said, Tucows chief Elliot Noss is a vocal privacy advocate, so I’m not sure how much leading was required. Tucows was also a co-developer (pdf) of the eco model.

The injunction application was filed the same day GDPR came into effect, after eleventh-hour talks between ICANN legal and Tucows leadership including chief legal officer Bret Fausett hit an impasse.

Tucows has agreed to freeze its plan to delete its existing Admin-C and Tech-C stored data, however.

The suit has a nominal million-euro value attached, but I’m convinced ICANN (despite its budget crunch) is not interested in the money here.

It’s my sense that this may not be the last time we see ICANN sue in order to bring clarity to GDPR.

Recently, Jeffrey said that ICANN would not tolerate contracted parties refusing to collect full Whois data, and also that it would not tolerate it when they decline to hand the data over to parties with legitimate interests.

The German lawsuit does not address this second category of non-compliance.

But it seems almost certain to me that intellectual lawyers are just days or weeks away from starting to file compliance tickets with ICANN when they are refused access to this data, which could lead to additional litigation.

“Whether it would result in a lawsuit is yet to be determined,” Jeffrey told DI yesterday. “The normal course would be a compliance action. If people aren’t able to gain access to information they believe that they have a legitimate right to access they will file compliance complaints. Those compliance complaints will be evaluated.”

“If it’s a systematic decision not to provide that access, that would violate the [Temporary Policy],” he said. “If they indicated it was because of their interpretation of the law, then it could result in us asking questions of the DPAs or going to court if that’s the only action available.”

The injunction application is a “one-sided filing”, which Jeffrey tells me is a feature of German law that means the court could issue a ruling without requiring EPAG/Tucows to appear in court or even formally respond.

The dispute therefore could be resolved rather quickly — this week even — by the court of first instance, Jeffrey said, or it could be bounced up to the European Court of Justice.

Given how new GDPR is, and considering the wider implications, the latter option seems like a real possibility.

How all 33 European ccTLDs are handling GDPR

Kevin Murphy, May 25, 2018, Domain Policy

Happy GDPR Day everyone!

Today’s the day that the European Union’s not-quite-long-enough-awaited General Data Protection Regulation comes into effect, giving registries and registrars the world over the prospect of scary fines if they don’t keep their registrants’ Whois data private.

So I thought today would be the perfect day to summarize what each EU or European Economic Area ccTLD has said they are doing about GDPR as it pertains to Whois.

There are 33 such ccTLDs, arguably, and I’ve checked the public statements and web sites of each to hit the key changes they’ve announced.

Because ccTLDs are not governed by ICANN contracts, they had to figure out GDPR compliance for themselves (though some did take note of ICANN guidance).

So I’ve found there are differing interpretations of key points such as whether it’s kosher to continue to publish contact email addresses, and where the line between “natural persons” (ie humans) and “legal persons” (ie companies and other organizations) should be drawn.

Some have also been quite specific about when they will release private data to third parties with so-called “legitimate purposes”; others are more vague.

Note that some of the 33 do not appear to have published anything about GDPR. It’s possible this is because they didn’t need to make any changes. It’s also possible that I simply could not find the information because I’m rubbish.

I should also note that I did the majority of this research yesterday, so additional statements may have been made in the meantime.

Anyway, here’s the list, in alphabetical order.

Austria (.at)

In Austria, from last week public Whois records only show the domain name and technical information when the domain is owned by natural persons. Company-owned domains are unchanged. Any registrant can opt in to having their data published. Only verified “law enforcement agencies, lawyers or people who contact nic.at following domain disputes and who can prove that their rights have been infringed” are allowed to access full records.

Belgium (.be)

DNS.be has not been publishing personal info of natural person registrants, other than their email address, since 2000. As of last week, email addresses are not being published either. It’s also removed the contact name (though not the organization) for domains owned by legal persons. A web form is available to contact anonymized registrants.

Bulgaria (.bg)

There’s not currently any information on the registry web site to indicate any GDPR-related changes, at least in English, that I could find.

Croatia (.hr)

No info on GDPR to be found here either.

Cyprus (.cy)

Ditto.

Czechia/Czech Republic (.cz)

Nic.cz has new rules (pdf) coming in tomorrow that specify which Whois fields will or may be “hidden”, but the English version of the document is too confusing for me to follow. It appears as if plenty of contact information will be masked, and that the registry will only make it available to those who contact it directly with a good enough reason (and it may charge for access). It may also release historical records to those with legitimate purposes.

Denmark (.dk)

Remarkably, there will be NO CHANGE to Whois in .dk after tomorrow, according to an article published on the registry’s web site today. DIFO, the registry, is subject to a Danish law that makes publication of Whois mandatory so, the company said, “we will continue to publish the information – for the benefit of those who need to know who is behind a given domain name. Regardless of whether it is because you want to protect your brand, investigate a crime, do research or just satisfy your curiosity.” Wow!

European Union (.eu)

Eurid’s current Whois policy (pdf) states that only the email address of natural persons will be published publicly. Registrants get the option from their registrars to have this address anonymized. Private data can be released to those who show they have a legitimate interest in accessing it.

Estonia (.ee)

The Estonian Internet Foundation Council approved its GDPR changes (pdf) back in March. They say that no personal information on natural persons will be published, though it appears there will be a way to get in contact with them via the registry itself.

Finland (.fi)

The Finnish registry, FICORA, is a governmental entity that has published remarkably little about GDPR on its site. Its Whois shows the name of the registrant, even when they’re a natural person. Registrants can also opt in to reveal more information about themselves.

France (.fr)

Afnic didn’t have to do much to comply with RGPD (tut!) as it has been hiding the personal info of natural-person registrants since it started allowing them to register .fr names back in 2006. Likewise, it already has a procedure to enable the likes of trademark owners to get their hands on contact info in the event of a dispute, which involves filling out a form (pdf) and promising to only use the data acquired for the purposes specified.

Germany (.de)

DENIC, Europe’s largest ccTLD registry said a few months back that it would expunge personal data from its public Whois and implement a semi-automated system for requesting full records. It’s also adding two “non-personalized” contact email addresses for general and technical inquiries, which will be managed by the registrar in question.

Greece (.gr)

I couldn’t find any GDPR-related information on the registry web site, but its Whois appears to not output contact details for any registrant anyway.

Hungary (.hu)

Currently outputs “private registrant” as the registrant’s name when they’re a natural person, along with a technical contact email and no other personal information. Legal persons get their full contact info published. It’s not entirely clear how recent this policy is.

Iceland (.is)

Iceland’s ISNIC is one of the ccTLD registries to announce that it will continue to publish registrants’ email addresses, though no other contact info, until it is told to stop. In a somewhat defiant post last month, the registry said that GDPR as applied to Whois “will lead to less transparency in domain registrations and less trust in the domain registration system in general”.

Ireland (.ie)

IEDR will not publish contact information for any registrant, though it will publish their name if they’re a legal person. It will only disclose personal information to law enforcement, under court order, for technical matters, or to help a dispute resolution partner resolve a cybersquatting claim.

Italy (.it)

The current version of Registro.it’s Whois policy, dated September 2016, says it will publish all contact information over port 43 and a subset of some contact info (including phone and email) over the web query tool. There’s no mention I could find on its site of GDPR-related changes, though its 2016 policy acknowledges some might be needed.

Latvia (.lv)

Under its post-GDPR policy (pdf), Nic.lv will not publish any personal info about natural persons in its public Whois, and only law enforcement and the government can request the records. Legal-person registrants continue to have their full contact data published.

Liechtenstein (.li)

Liechtenstein is managed by Switzerland’s SWITCH and appears to have the same policies.

Lithuania (.lt)

DomReg’s new privacy policy (pdf) gives natural persons an opt-in to have their personal data published, but otherwise it will all be private. There’s an email-forwarding option. Lawyers with claims against registrants can pay the registry for the Whois record if the registrant has not responded to their forwarded emails within 15 days.

Luxembourg (.lu)

.lu registry RESTENA Foundation said it will cut all personal information for natural-person registrants and make a web-based form available for contact purposes. There will be an opt-in for those who want their data published at a later date. Legal persons continue to have their data published. The registry will make current and historical records available for those with legit purposes, and will create automated blanket access system for national authorities that require regular access.

Malta (.mt)

NIC(Malta)’s current Whois policy, which is only six months old, allows any registrant to opt out of having their personal data published in Whois, but appears to require than a “Administrative Agent” be appointed to take their place in the public database. There’s no info on its web site about any upcoming changes due to GDPR.

Netherlands (.nl)

SIDN explains in a recent paper (pdf) that it didn’t have to make many changes to its Whois service because personal information was already pretty much redacted. The biggest change appears to be more throttling of Whois queries applied to registrars when they’re querying domains they don’t already sponsor.

Norway (.no)

Norid said this week that it will publish the email address of private individual registrants, and full contact info for companies. It’s also the only European ccTLD I’m aware of to have a third class of registrant, the sole proprietorship, which will also see their organization names and numbers published. There does not appear to be an in-house email anonymization or forwarding service, for which Norid encourages registrants to look elsewhere.

Poland (.pl)

NASK has no GDPR related info on its web site, but its evidently quite old Whois policy states that the private information of individuals is not published.

Portugal (.pt)

DNS.pt has a comprehensive set of documents on its site explaining its pre- and post-GDPR policies. From today, natural-person registrants are given the option to provide their “informed, willing, and express consent” to having their data published. If they don’t give consent, it will be redacted from public records and email addresses may be replaced with an anonymized address. This is not available to legal entities. ARBITRARE, a local arbitration center tasked with handle IP disputes, will be able to have access to full records.

Romania (.ro)

RoTLD said yesterday that it would no longer publish private information of individuals, but that it may release such data to “carefully verified” third parties with legitimate interests. It also encouraged registrants to use non-personally-indentifying email addresses if they wish to have a further degree of privacy.

Slovakia (.sk)

SKNIC, now owned by UK-based CentralNic, has an interesting definition of the type of natural person you have to be to have your data protected — a “natural person non-enterpreneur” — according to its helpfully redlined policy update (pdf), suggesting that offering commercial services might void your right to natural-person status. (UPDATE: SKNIC tells me that “natural person–entrepreneur is a legal definition of a specific version of legal person” in Slovakia). There’s a carve-out that allows the registry to provide private data to third parties with legal claims, or to its cybersquatting dispute handler.

Slovenia (.si)

Register.si said this week that it will shortly publish its post-GDPR privacy policy, but it does not appear to have yet done so.

Spain (.es)

I could find no GDPR-related information on the Dominios.es site.

Sweden (.se)

IIS has not published the private fields of Whois records for natural persons since 2013. From today, it will also redact the contact name and email address from the records of legal-person registrants, as it may be considered “personal” data under the law.

Switzerland (.ch)

I don’t think GDPR actually applies to Switzerland, which is not an EEA member, but the .ch registry, SWITCH, also runs Liechtenstein’s .li, so I’m including it here. SWITCH says on both of its sites that it is required by Swiss law to publish Whois records, though they’re subject to an acceptable use policy that includes throttling. When I attempted to do a single Whois query via the SWITCH site today I was told I had already exceeded my quota. Shrug.

United Kingdom (.uk)

UK registry Nominet has long had a two-tier Whois, where private individuals do not have their contact information published in the public Whois. But as of this week it has started redacting all registrant contact information. It’s also going to be offering a paid-for searchable Whois service and a free data request service with a one-day turnaround.

Sedo’s cunning GDPR workaround

Kevin Murphy, May 23, 2018, Domain Services

With full Whois records set to disappear from public view for most domain names this Friday, auction house Sedo has had to resort to some technical trickery to enable its users to prove they own the domains they list for sale.

Until now, when listing a domain at Sedo, the company has checked whether the Whois record matches the data it has on file for the customer.

With that no longer possible in many cases, Sedo told users yesterday it instead wants them make updates to their DNS records, which will obviously remain public data post-GDPR.

Sedo will give each customer a personal identification number, which they will have to add to the all-purpose TXT field of their domain’s DNS record.

That’s a fairly straightforward process at most registrars, though volume domainers had better hope their registrar of choice allows DNS changes to be made in bulk.

Sedo’s calling the process “Owner Self-Verification”.

Customers who do not use the system will have to wait three business days before their names are verified. Sedo said it will manually spot-check domains and may ask for other forms of proof of ownership.

UPDATE: Many thanks to all the people on Twitter telling me this system has been in place for years. You’re all very clever. Your cookies/cigars are in the mail.

ICANN board talking GDPR “litigation”

Kevin Murphy, May 21, 2018, Domain Policy

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

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

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

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

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

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

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

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

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

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

Domainers not welcome in this Whois database

Inquiries from domain investors are specifically barred under one registry’s take on GDPR compliance.

The Austrian ccTLD registry, nic.at, yesterday stopped publishing the personal information of human registrants in its public Whois database, unless the registrant has opted to have their data public.

The company said it will provide thick Whois records only to “people who provide proof of identity and are able to prove a legitimate interest for finding out who the domain holder is”.

But this specifically excludes people who are trying to buy the domain in question.

“A buying interest or the wish to contact the domain holder is definitely no legitimate interest,” the company said in a statement.

It quotes its head of legal, Barbara Schlossbauer, saying: “I am also not able to investigate a car driver’s address over his license number just because I like his car and want to buy it.”

She said that those able to access records include “law enforcement agencies, lawyers or people who contact nic.at following domain disputes and who can prove that their rights have been infringed”.

While nic.at is bound by GDPR, as a ccTLD registry it is not bound by the new GDPR-compliant Whois policy announced by ICANN overnight, where who will be able to request thick Whois records is still an open question.

ICANN approves messy, unfinished Whois policy

Kevin Murphy, May 18, 2018, Domain Policy

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

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

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

What’s in public Whois?

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

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

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

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

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

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

What about privacy services?

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

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

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

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

So how do you contact registrants?

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

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

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

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

Who gets to see the private data?

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

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

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

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

This is what the policy says:

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

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

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

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

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

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

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

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

How will transfers work?

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

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

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

What happens next?

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

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

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

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

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

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

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

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

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

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

Three reasons ICANN could swing the GDPR ban hammer on day one

Kevin Murphy, May 16, 2018, Domain Policy

While ICANN reckons it will act “reasonably” when it comes to enforcing compliance with its incoming GDPR emergency policy, there are some things it simply will not tolerate.

The policy expected to be approved tomorrow and immediately incorporated by reference into registry and registrar contracts, is a little light on expected implementation timetables, so this week ICANN has been pressured for clarity.

Will Compliance start firing off breach notices on May 26, the day after GDPR comes into effect, if the industry has not immediately implemented every aspect of the new policy?

Attendees at the Global Domains Division Summit in Vancouver managed to get some answers out of general counsel John Jeffrey at a session yesterday.

First off, if you’re a registrar planning to stop collecting registrants’ personal information for Whois, ICANN will not be happy, and you could be looking at a Compliance ticket.

Jeffrey said:

We don’t want any of the contracted parties to stop collecting the data. ICANN is confident that you can continue to collect the data. We will stand in front of you on it, if we can. Do not stop collecting the data. We believe we have a very strong, important point. We hear from the governments that were involved in passing this legislation that it’s important it continues to be collected.

Second, you have to have a mechanism in place for people with “legitimate purposes” to access thick Whois records that contain all the juicy personal information.

Jeffrey said:

We also believe it’s important there’s a need to continue to display information that will be behind that second tier. And we can demonstrate the need to do that as well. This is really important.

And if there was any doubt remaining, he added:

We will enforce on the temporary spec, if it’s approved, if you stop collecting data, or if you don’t provide any mechanism to allow access to it. It’s a very serious concern.

The problem right now is that the Temporary Policy (pdf), still in draft, doesn’t have a whole heck of lot of detail about who should be allowed such access and the mechanisms to enable it.

It says:

Personal Data included in Registration Data may be Processed on the basis of a legitimate interest not overridden by the fundamental rights and freedoms of individuals whose Personal Data is included in Registration Data

It goes on to list circumstances where access may be given and types of parties that may need access, but it seems to me to still give registries and registrars quite a lot of responsibility to decide how to balance privacy rights and the “legitimate” data requests.

Those two scenarios — not collecting data and not making it available to those who need it — seem to be the big two zero tolerance areas for ICANN.

Other issues, such as replacing the registrant’s email address in the thin Whois output, also appear to be a pressing concern.

Jeffrey said, noting that providing a way to contact registrants is important for myriad reasons, including UDRP:

Creating the anonymized emails or web forms is another really important aspect but we understand some won’t be able to have that in place immediately.

How long after GDPR Day ICANN starts swinging the ban hammer over the email issue seems to be something ICANN is still thinking about.

That said, Jeffrey said that the organization intends to act “as reasonably as possible”.

No, I don’t get what’s going on with GDPR either

Kevin Murphy, May 16, 2018, Domain Policy

GDPR comes into effect next week, changing the Whois privacy landscape forever, and like many others I still haven’t got a clue what’s going on.

ICANN’s still muddling through a temporary Whois spec that it hopes will shield itself and the industry from fines, special interests are still lobbying for special privileges after May 25, EU privacy regulators are still resisting ICANN’s begging expeditions, and registries and registrars are implementing their own independent solutions.

So what will Whois look like from next Friday? It’s all very confusing.

But here’s what my rotting, misfiring, middle-aged brain has managed to process over the last several days.

1. Not even the ICANN board agrees on the best way forward

For the best part of 2018, ICANN has been working on a temporary replacement Whois specification that it could crowbar into its contracts in order to enforce uniformity across the gTLD space and avoid “fragmentation”, which is seen as a horrific prospect for reasons I’ve never fully understood (Whois has always been fragmented).

The spec has been based on legal advice, community and industry input, and slim guidance from the Article 29 Working Party (the group comprising all EU data protection authorities or DPAs).

ICANN finally published a draft (pdf) of the spec late last Friday, May 11.

That document states… actually, forget it. By the time the weekend was over it and I had gotten my head around it, it had already been replaced by another one.

Suffice it to say that it was fairly vague on certain counts — crucially, what “legitimate purposes” for accessing Whois records might be.

The May 14 version came after the ICANN board of directors spent 16 hours or so during its Vancouver retreat apparently arguing quite vigorously about what the spec should contain.

The result is a document that provides a bit more clarity about that it hopes to achieve, and gets a bit more granular on who should be allowed access to private data.

Importantly, between May 11 and May 14, the document started to tile the scales a little away from the privacy rights of registrants and towards towards the data access rights of those with the aforementioned legitimate purposes for accessing it.

One thing the board could agree on was that even after working all weekend on the spec, it was still not ready to vote to formally adopt it as a Temporary Policy, which would become binding on all registries and registrars.

It now plans to vote on the Temporary Policy tomorrow, May 17, after basically sleeping on it and considering the last-minute yowls and cries for help from the variously impacted parts of the community.

I’ll report on the details of the policy after it gets the nod.

2. ICANN seems to have grown a pair

Tonally, ICANN’s position seems to have shifted over the weekend, perhaps reflecting an increasingly defiant, confident ICANN.

Its weekend resolution asserts:

the global public interest is served by the implementation of a unified policy governing aspects of the gTLD Registration Data when the GDPR goes into full effect.

For ICANN to state baldly, in a Resolved clause, that something is in the “global public interest” is notable, given what a slippery topic that has been in the past.

New language in the May 14 spec (pdf) also states, as part of its justification for continuing to mandate Whois as a tool for non-technical purposes: “While ICANN’s role is narrow, it is not limited to technical stability.”

The board also reaffirmed that it’s going to reject Governmental Advisory Committee advice, which pressured ICANN to keep Whois as close to its current state as possible, and kick off a so-called “Bylaws consultation” to see if there’s any way to compromise.

I may be reading too much into all this, but it seems to me that having spent the last year coming across as a borderline incompetent johnny-come-lately to the GDPR conversation, ICANN’s becoming more confident about its role.

3. But it’s still asking DPAs for a moratorium, kinda

When ICANN asked the Article 29 Working Party for a “moratorium” on GDPR enforcement, to give itself and the industry some breathing space to catch up on its compliance initiatives, it was told no such thing was legally possible.

Not to be deterred, ICANN has fired back with a long list of questions (pdf) asking for assurances that DPAs will not start fining registrars willy-nilly after the May 25 deadline.

Sure, there may be no such thing as a moratorium, ICANN acknowledges, but can the DPAs at least say that they will take into account the progress ICANN and the industry is making towards compliance when they consider their responses to any regulatory complaints they might receive?

The French DPA, the Commission Nationale de L’informatique & Libertés, has already said it does not plan to fine companies immediately after May 25, so does that go for the other DPAs too? ICANN wants to know!

It’s basically another way of asking for a moratorium, but one based on aw-shucks reasonableness and an acknowledgement that Whois is a tricky edge case that probably wasn’t even considered when GDPR was being developed.

4. No accreditation model, yet

There’s no reference in the new spec to an accreditation model that would give restricted, tiered access to private Whois data to the likes of security researchers and IP lawyers.

The board’s weekend resolution gives a nod to ongoing discussions, led by the Intellectual Property Constituency and Business Constituency (and reluctantly lurked on by other community members), about creating such a model:

The Board is aware that some parts of the ICANN community has begun work to define an Accreditation Model for access to personal data in Registration Data. The Board encourages the community to continue this work, taking into account any advice and guidance that Article 29 Working Party or European Data Protection Board might provide on the topic.

But there doesn’t appear to be any danger of this model making it into the Temporary Policy tomorrow, something that would have been roundly rejected by contracted parties.

While these talks are being given resource support by ICANN (in terms of mailing lists and teleconferencing), they’re not part of any formal policy development process and nobody’s under any obligation to stick to whatever model gets produced.

The latest update to the accreditation model spec, version 1.5, was released last Thursday.

It’s becoming a bit of a monster of a document — at 46 pages it’s 10 pages longer than the ICANN temporary spec — and would create a hugely convoluted system in which people wanting Whois access would have to provide photo ID and other credentials then pay an annual fee to a new agency set up to police access rights.

More on that in a later piece.

5. Whois is literally dead

The key technical change in the temporary Whois spec is that it’s not actually Whois at all.

Whois is not just the name given to the databases, remember, it’s also an aging technical standard for how queries and responses are passed over the internet.

Instead, ICANN is going to mandate a switch to RDAP, the much newer Registration Data Access Protocol.

RDAP makes Whois output more machine-readable and, crucially, it has access control baked in, enabling the kind of tiered access system that now seems inevitable.

ICANN’s new temporary spec would see an RDAP profile created by ICANN and the community by the end of July. The industry would then have 135 days — likely a late December deadline — to implement it.

Problem is, with a few exceptions, RDAP is brand-new tech to most registries and registrars.

We’re looking at a steep learning curve for many, no doubt.

6. It’s all a bit of a clusterfuck

The situation as it stands appears to be this:

ICANN is going to approve a new Whois policy tomorrow that will become binding upon a few thousand contracted parties just one week later.

While registries and registrars have of course had a year or so’s notice that GDPR is coming and will affect them, and I doubt ICANN Compliance will be complete assholes about enforcement in the near term, a week’s implementation time on a new policy is laughably, impossibly short.

For non-contracted parties, a fragmented Whois seems almost inevitable in the short term after May 25. Those of us who use Whois records will have to wait quite a bit longer before anything close to the current system becomes available.

Whois working group imploding in GDPR’s wake

Kevin Murphy, May 14, 2018, Domain Policy

An ICANN working group devoted to Whois policy is looking increasingly dead after being trumped by incoming European Union privacy law.

Registration Data Services PDP working group chair Chuck Gomes threw in the towel late last week, resigning from the group shortly after cancelling proposed face-to-face meetings scheduled for the Panama ICANN meeting in June.

That followed his announcement last month that the WG’s teleconferences were to be put on hold while ICANN works out how to respond to the General Data Protection Regulation, which comes into effect May 25, 11 days from now.

The WG had been working on ICANN’s future Whois policy since November 2015 but faced the usual impasses that occur whenever the various sides of the ICANN community face off over privacy.

Gomes, a former Versign executive who retired almost a year ago but stuck around to chair the RDS group, said he’d originally expected its work to wrap up in 2017.

Now, with GDPR rendering much of the discussions moot, there’s a feeling among some WG volunteers that they’ve been wasting their time.

ICANN’s response to GDPR is expected to be an emergency, top-down policy, written by staff and approved by the board, that would stay in place for a year.

The GNSO would then have a year to rally the community, under its own emergency procedures, to make formal policy to replace it for the long term.

There’s an open question about whether the RDS WG could be re-purposed to take on this task, but it’s my sense it’s more likely that a new group would be formed.

It may prove more challenging to recruit volunteers to such a group given the experiences of the RDS crowd.

Gomes, a long-time ICANN veteran and former GNSO Council chair, plans to spend more time travelling around in his RV with his wife. We wish them well.