Latest news of the domain name industry

Recent Posts

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.