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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.

ICANN flips off governments over Whois privacy

Kevin Murphy, May 8, 2018, Domain Policy

ICANN has formally extended its middle finger to its Governmental Advisory Committee for only the third time, telling the GAC that it cannot comply with its advice on Whois privacy.

It’s triggered a clause in its bylaws used to force both parties to the table for urgent talks, first used when ICANN clashed with the GAC on approving .xxx back in 2010.

The ICANN board of directors has decided that it cannot accept nine of the 10 bulleted items of formal advice on compliance with the General Data Protection Regulation that the GAC provided after its meetings in Puerto Rico in March.

Among that advice is a direction that public Whois records should continue to contain the email address of the registrant after GDPR goes into effect May 25, and that parties with a “legitimate purpose” in Whois data should continue to get access.

Of the 10 pieces of advice, ICANN proposes kicking eight of them down the road to be dealt with at a later date.

It’s given the GAC a face-saving way to back away from these items by clarifying that they refer not to the “interim” Whois model likely to come into effect at the GDPR deadline, but to the “ultimate” model that could come into effect a year later after the ICANN community’s got its shit together.

Attempting to retcon GAC advice is not unusual when ICANN disagrees with its governments, but this time at least it’s being up-front about it.

ICANN chair Cherine Chalaby told GAC chair Manal Ismail:

Reaching a common understanding of the GAC’s advice in relation to the Interim Model (May 25) versus the Ultimate Model would greatly assist the Board’s deliberations on the GAC’s advice.

Of the remaining two items of advice, ICANN agrees with one and proposes immediate talks on the other.

One item, concerning the deployment of a Temporary Policy to enforce a uniform Whois on an emergency basis, ICANN says it can accept immediately. Indeed, the Temporary Policy route we first reported on a month ago now appears to be a done deal.

ICANN has asked the GAC for a teleconference this week to discuss the remaining item, which is:

Ensure continued access to the WHOIS, including non-public data, for users with a legitimate purpose, until the time when the interim WHOIS model is fully operational, on a mandatory basis for all contracted parties;

Basically, the GAC is trying to prevent the juicier bits of Whois from going dark for everyone, including the likes of law enforcement and trademark lawyers, two weeks from now.

The problem here is that while ICANN has tacit agreement from European data protection authorities that a tiered-access, accreditation-based model is probably a good idea, no such system currently exists and until very recently it’s not been something in which ICANN has invested a lot of focus.

A hundred or so members of the ICANN community, led by IP lawyers who won’t take no for an answer, are currently working off-the-books on an interim accreditation model that could feasibly be used, but it is still subject to substantial debate.

In any event, it would be basically impossible for any agreed-upon accreditation solution to be implemented across the industry before May 25.

So ICANN has invoked its bylaws fuck-you powers for only the third time in its history.

The first time was when the GAC opposed .xxx for reasons lost in the mists of time back in 2010. The second was in 2014 when the GAC overstepped its powers and told ICANN to ignore the rest of the community on the issue of Red Cross related domains.

The board resolved at a meeting last Thursday:

the Board has determined that it may take an action that is not consistent or may not be consistent with the GAC’s advice in the San Juan Communiqué concerning the GDPR and ICANN’s proposed Interim GDPR Compliance Model, and hereby initiates the required Board-GAC Bylaws Consultation Process required in such an event. The Board will provide written notice to the GAC to initiate the process as required by the Bylaws Consultation Process.

Chalaby asked Ismail (pdf) for a call this week. I don’t know if that call has yet taken place, but given the short notice I expect it has not.

For the record, here’s the GAC’s GDPR advice from its Puerto Rico communique (pdf).

the GAC advises the ICANN Board to instruct the ICANN Organization to:

i. Ensure that the proposed interim model maintains current WHOIS requirements to the fullest extent possible;

ii. Provide a detailed rationale for the choices made in the interim model, explaining their necessity and proportionality in relation to the legitimate purposes identified;

iii. In particular, reconsider the proposal to hide the registrant email address as this may not be proportionate in view of the significant negative impact on law enforcement, cybersecurity and rights protection;

iv. Distinguish between legal and natural persons, allowing for public access to WHOIS data of legal entities, which are not in the remit of the GDPR;

v. Ensure continued access to the WHOIS, including non-public data, for users with a legitimate purpose, until the time when the interim WHOIS model is fully operational, on a mandatory basis for all contracted parties;

vi. Ensure that limitations in terms of query volume envisaged under an accreditation program balance realistic investigatory crossreferencing needs; and

vii. Ensure confidentiality of WHOIS queries by law enforcement agencies.

b. the GAC advises the ICANN Board to instruct the ICANN Organization to:

i. Complete the interim model as swiftly as possible, taking into account the advice above. Once the model is finalized, the GAC will complement ICANN’s outreach to the Article 29 Working Party, inviting them to provide their views;

ii. Consider the use of Temporary Policies and/or Special Amendments to ICANN’s standard Registry and Registrar contracts to mandate implementation of an interim model and a temporary access mechanism; and

iii. Assist in informing other national governments not represented in the GAC of the opportunity for individual governments, if they wish to do so, to provide information to ICANN on governmental users to ensure continued access to WHOIS.

Iceland breaks ranks on Whois, will publish emails

Kevin Murphy, April 30, 2018, Domain Policy

Iceland’s ccTLD has become what I believe is the first registry to state that it will continue to publish email addresses in public Whois records after the General Data Protection Regulation comes into effect.

The move seems to put the registry, ISNIC, in direct conflict with the opinions of European data protection authorities.

The company said in a statement last week that after GDPR comes into effect May 25 it will stop publishing almost all personal information about .is registrants in the public Whois.

However, it broke ranks with other European ccTLDs and the likely ruleset for ICANN-regulated gTLDs, by saying it would not expunge email addresses:

ISNIC will however, at least for the time being, continue to publish email addresses, country and techincal information of all NIC-handles associated with .is domains. Those customers (individuals) who have recorded a personally identifiable email address, and do not want it published, will need to change their .is WHOIS email address to something impersonal.

Registrants will be able to opt in to having their full details published.

ISNIC appears to be taking a principled stand against the Draconian regulation. It said in a statement:

Assuming that GDPR directive applies fully to the “WHOIS” service provided for decades by most ccTLD registries, these new restrictions will lead to less transparency in domain registrations and less trust in the domain registration system in general. ISNIC, as many others, strongly disagrees with the view of the European parlament [sic] in this matter and warns that GDPR, as it is being implemented, will neither lead to better privacy nor a safer network environment.

It’s a surprising decision, given that privacy regulators have indicated that they agree that email addresses are personal data that should not be published.

The Article 29 Working Party told ICANN earlier this month that it “welcomed” a proposal to replace email addresses with anonymized emails or web-based contact forms.

Nominet to charge brands for no-name Whois access

Kevin Murphy, April 23, 2018, Domain Registries

Nominet has become the second major registry to announce that trademark lawyers will have to pay for Whois after the EU General Data Protection Regulation comes into effect next month.

The company said late last week that it will offer the intellectual property community two tiers of Whois access.

First, they can pay for a searchable Whois with a much more limited output.

Nominet said that “users of the existing Searchable WHOIS who are not law enforcement will continue to have access to the service on a charged-for basis however the registrant name and address will be redacted”.

Second, they can request the full Whois record (including historical data) for a specific domain and get a response within one business day for no charge.

Approved law enforcement agencies will continue to get unfettered access to both services — with “enhanced output” for the searchable Whois — for no charge, Nominet said.

These changes were decided upon following a month-long consultation which accepted comments from interested parties.

Other significant changes incoming include:

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

Nominet is the second registry I’m aware of to say it will charge brand owners for Whois access, after CoCCA 10 days ago.

CoCCA has since stated that it will sell IP owners a PDF containing the entire unredacted Whois history of a domain for $3, if they declare that they have a legitimate interest in the domain.

It also said they will be able to buy zone file access to the dozens of TLDs running on the CoCCA platform for $88 per TLD.

Now GNSO mulls emergency response to GDPR deadline

Kevin Murphy, April 16, 2018, Domain Policy

ICANN’s GNSO Council is thinking about deploying a never-before-used emergency mechanism to develop a Whois privacy policy in response to GDPR.

With the May 25 deadline for compliance with the EU’s General Data Protection Regulation fast approaching, the community is scrambling to figure out how it can bring ICANN’s policies and therefore its contracts into line with the Draconian privacy provisions of the new law.

Currently, ICANN contracts with registries and registrars demand the publication of full Whois records, something GDPR will not permit, so each company in the industry is busily figuring out how its own Whois database will comply.

Fearful of a “fragmented” Whois, ICANN’s board of directors is considering deploying its own top-down emergency measure — called a Temporary Policy in its contracts — to ensure uniformity across its contracts.

CEO Goran Marby revealed to DI earlier this month that a Temporary Policy was being considered, and he and other members of the board confirmed as much to GNSO leadership during a telephone briefing last week.

(It should be noted that the call took place prior to the receipt last week of guidance from the EU Article 29 Working Party, which prompted ICANN to start mulling legal options as one way to buy the industry some time to comply post-May.)

The call (recorded here with password Eur3wiEK and summarized in this letter (pdf)), focused almost exclusively on how the Council could respond to a board-mandated Temporary Policy, with the board suggesting a GNSO Expedited Policy Development Process might be the best way to proceed.

A Temporary Policy would expire within a year, so the GNSO would have to come up with a formal Consensus Policy within that time-frame if ICANN were to have any hope of having a uniform view of Whois across its contracts.

The Temporary Policy is a “strong option” for the board, and a “highly likely or likely” outcome, but nothing has been formally decided, the GNSO leaders heard from ICANN vice-chair Chris Disspain. He was briefly challenged by Marby, who appeared somewhat more committed to the move.

While the GNSO Council has not yet formally decided to deploy the EPDP, it appears to be the most-feasible option to meet the deadline a Temporary Policy would impose.

It is estimated that an EPDP could take as little as 360 days, compared to the estimated 849 days of a regular PDP.

The EPDP cuts out several of the initial steps of a regular PDP — mainly the need for an Initial Report and associated public comment period — which by my reading would shorten the process by at least 100 days.

It also seems to give the GNSO some wriggle room in how the actual policy creation takes place. It appears that the regular “working group” structure could be replaced, for example, with a “drafting team”.

If the EPDP has the Temporary Policy and WP29 guidance as its baseline for discussions, that could also help cut out some of the circular argument that usually characterizes Whois discussions.

Aware that the EPDP is a strong possibility, the Council is currently planning to give itself a crash course in the process, which has never been used before by any iteration of the Council.

It’s uncharted territory for both the GNSO and the ICANN board, and the only people who seem to have a firm grasp on how the two emergency mechanisms slot together are the ICANN staffers who are paid to know such things.

UPDATE: A couple of hours after this article was published, ICANN posted this three-page flow-chart (pdf) comparing EPDP to PDP. Lots of luck.