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Registrars will miss GDPR deadline by a mile

Kevin Murphy, March 28, 2018, Domain Registrars

Registries and registrars won’t be able to implement ICANN’s proposed overhaul of the Whois system in time for the EU’s General Data Protection Regulation coming into effect.

That’s according to an estimated timetable (pdf) sent by ICANN’s contracted parties to the organization this week.

While they feel confident that some elements of ICANN’s GDPR compliance plan could be in place before May 25 this year, when the law kicks in, they feel that other elements could take many months to design and roll out.

Depending on the detail of the finalized plan, we could be looking at the back end of 2019 before all the pieces have been put in place.

Crucially, the contracted parties warn that designing and rolling out a temporary method for granting Whois access to entities with legitimate interests in the data, such as police and trademark owners, could take a year.

And that’s just the stop-gap, Band-Aid hack that individual registries and registrars would put in place while waiting — “quarters (or possibly years), rather than months” — for a fully centralized ICANN accreditation solution to be put in place.

The outlook looks bleak for those hoping for uninterrupted Whois access, in other words.

But the timetable lists many other sources of potential delay too.

Even just replacing the registrant’s email address with a web form or anonymized forwarding address could take up to four months to put online, the contracted parties say.

Generally speaking, the more the post-GDPR Whois differs from the current model the longer the contracted parties believe it will take to roll out.

Likewise, the more granular the controls on the data, the longer the implementation window.

For example, if ICANN forces registrars to differentiate between legal and natural persons, or between European and non-European registrants, that’s going to add six months to the implementation time and cost a bomb, the letter says.

Anything that messes with EPP, the protocol underpinning all registry-registrar interactions, will add some serious time to the roll-out too, due to the implementation time and the contractual requirement for a 90-day notice period.

The heaviest workload highlighted in the letter is the proposed opt-in system for registrants (such as domain investors) who wish to waive their privacy rights in favor of making themselves more contactable.

The contracted parties reckon this would take nine months if it’s implemented only at the registrar, or up to 15 months if coordination between registries and registrars is required (and that timeline assumes no new EPP extensions are going to be needed).

It’s possible that the estimates in the letter could be exaggerated as part of the contracted parties’ efforts to pressure ICANN to adopt the kind of post-GDPR Whois they want to see.

But even if we assume that is the case, and even if ICANN were to finalize its compliance model tomorrow, there appears to be little chance that it will be fully implemented at all registrars and registries in time for May 25.

The letter notes that the timetable is an estimate and does not apply to all contracted parties.

As I blogged earlier today, ICANN CEO Goran Marby has this week reached out to data protection authorities across the EU for guidance, in a letter that also asks the DPAs for an enforcement moratorium while the industry and community gets its act together.

Late last year, ICANN also committed not to enforce the Whois elements of its contracts when technical breaches are actually related to GDPR compliance.

ICANN chief begs privacy watchdogs for Whois advice

Kevin Murphy, March 28, 2018, Domain Policy

ICANN CEO Goran Marby has written to the data protection authorities of all 28 European Union states, along with the European Data Protection Supervisor, to ask for guidance on how to implement new privacy laws.

Marby also asked the DPAs about the possibility of an enforcement moratorium, to give the domain industry and ICANN more time to formulate their collective response to the General Data Protection Regulation.

GDPR, which aims to give EU citizens more control over their personal data, comes into full effect May 25. Companies that break the rules face fines that could amount to millions of euros.

But ICANN does not yet have a firm plan for bringing the distributed Whois system into compliance with GDPR, and has repeatedly indicated that it needs guidance from European DPAs.

“ICANN and more than a thousand of the domain names registries and registrars are at a critical juncture,” Marby wrote (pdf).

“We need specific guidance from European data protection authorities in order to meet the needs of the global internet stakeholder community, including governments, privacy authorities, law enforcement agencies, intellectual property holders, cybersecurity experts, domain name registries, registrars, registrants and ordinary internet users,” he wrote.

ICANN has already written a proposal — known as the “Cookbook” and sent to DPAs three weeks ago — for how gTLD registrars and registries could comply with GDPR by removing most fields from public Whois records.

But Marby’s letter points out that many ICANN community members think the Cookbook either goes too far or not far enough.

As we reported a week ago, the Governmental Advisory Committee and Intellectual Property Constituency are not convinced ICANN needs to chop quite as much info from the public Whois as it’s currently planning.

But on the flipside, there are privacy advocates who think far less data should be collected on registrants and fundamentally question ICANN’s power to mandate public Whois access in its registry and registrar contracts.

Both sides of the debate are referenced in the letter.

“Guidance from DPAs on ICANN’s plan of action as presented in the Cookbook, and in particular, the areas where there are competing views, is critical as soon as possible, but particularly during the next few weeks,” Marby wrote.

Whether ICANN will get the answers it needs on the timetable it needs them is open to debate.

Many community members expressed skepticism about whether the DPAs’ commitment to the urgency of the issue matches ICANN’s own, during ICANN 61 earlier this month.

There seemed to be little confidence that the DPAs’ responses, should ICANN receive any, will provide the clarity the industry needs.

It may also be bad timing given the unrelated Cambridge Analytica/Facebook scandal, which appears to be consuming the attention of some European DPAs.

Privacy could be a million-dollar business for ICANN

Kevin Murphy, March 22, 2018, Domain Registrars

ICANN has set out the fees it plans to charge to officially accredit Whois proxy and privacy services, in the face of resistance from some registrars.

VP of finance Becky Nash told registrars during a session at ICANN 61 last week that they can expect to pay $3,500 for their initial accreditation and $4,000 per year thereafter.

Those are exactly the same fees as ICANN charges under its regular registrar accreditation program.

Registrars that also offer privacy should expect to see their annual ICANN flat fees double, in other words. Per-domain transaction fees would be unaffected.

The up-front application fee would be reduced $2,000 when the privacy service is to be offered by an accredited registrar, but it would stay at $3,500 if the company offering service is merely “affiliated” with the registrar.

Nash said all the fees have been calculated on a per-accreditation basis, independent of the volume of applications ICANN receives.

Director of registrar services Jennifer Gore said that while ICANN has not baked an estimate of the number of accredited providers into its calculations, registrars have previously estimated the number at between 200 and 250 companies.

That would put the upper end of annual accreditation fees at $1 million, with $875,000 up-front for initial applications.

Volker Greimann, general counsel of the registrar Key-Systems, pointed out during the session that many registrars give away privacy services for free or at cost.

“This just adds cost to an already expensive service that does not really make money for a lot of providers,” he said.

He suggested that the prices could lead to unexpected negative consequences.

“Pricing this in this region will just lead to a lot of unaccredited providers that will switch names every couple months, an underground that we don’t really want,” he said. “We want to have as many people on board as possible and the way to do that is to keep costs low.”

“Pricing them out of the market is not the way to attract providers to join this scheme,” he said.

Nash responded that registrars are forbidden under the incoming privacy/proxy policy from accepting registrations from unaccredited services.

She added that the fees have been calculated on a “cost-recovery” basis. Costs include the initial background checks, outreach, contract admin, compliance, billing and so on.

But some registrars expressed skepticism that the proposed fees could be justified, given that ICANN does not plan to staff up to administer the program.

Another big question is whether proxy/privacy services are going to continue to have value after May this year, when the European Union’s General Data Protection Regulation kicks in.

The current ICANN plan for GDPR compliance would see individual registrants have all of their private information removed from the public Whois.

It’s not currently clear how many people and what kinds of people will continue to have access to unmasked Whois, so there are likely still plenty of cases where individuals might feel they need an extra layer of protection — if they live in a dictatorship and are engaged in rebellious political speech, for example.

There could also be cases where companies wish to mask their details ahead of, say, a product launch.

And, let’s face it, bad actors will continue to want to use privacy services on domains they intend to misuse.

The proxy/privacy policy came up through the formal GNSO Policy Development Process and was approved two years ago. It’s currently in the implementation phase.

According to a presentation from the ICANN 61 session, ICANN hopes to put the final implementation plan out for public comment by the end of the month.

Now Latvia guts Whois to comply with GDPR

Kevin Murphy, March 19, 2018, Domain Registries

Latvia has become the latest country to announce plans to cut back on Whois provision to comply with incoming European Union privacy law.

Its .lv ccTLD is the first I’m aware of to announce that it plans to cut back on the amount of data it actually collects in addition to how much it publishes.

NIC.lv said it will not longer require registrants to submit one postal address, instead of two. It will not longer require a something called a “fax” number, whatever that is, either.

The registry currently does not publish the names or physical addresses of its natural person registrants, but following the introduction of the General Data Protection Regulation in May it will stop publishing telephone numbers and email addresses too.

It will instead present a form that can be used to contact the registrant, a little like ICANN is proposing for gTLDs.

The company also plans to rate-limit Whois queries to mitigate harvesting.

The proposed changes are open for comments until April 12.

.lv has about 120,000 domains under management, according to its web site.

Austria to stop publishing most Whois data

Kevin Murphy, March 15, 2018, Domain Registries

Austrian ccTLD operator nic.at will no longer publish any Whois information for individual registrants, in order to comply with incoming EU privacy law.

“Natural persons’ data will no longer be published from mid-May 2018,” the company said today.

Data concerning legal entities such as companies will continue to be published, it added.

The move is of course an effort to become compliant with the General Data Protection Regulation, which currently has the industry scrambling around in the dark looking for ways avoid avoid millions of euros of potential fines.

nic.at will continue to collect the private data of individual registrants, but it will only publish technical information such as the name of the registrar and name servers in response to public Whois queries.

Companies will have their names and addresses published, but will have the option to have their email address and phone number hidden.

nic.at said it will disclose records to “law enforcement agencies, lawyers or people who contact nic.at following domain disputes and can prove that their rights have been infringed”.

People will be able to opt-in to having their information published

It’s arguably a more Draconian implementation of GDPR than the one proposed by ICANN for gTLDs, but it appears to be in line with plans already announced by Nominet for .uk and DENIC for .de.