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Amsterdam refuses to publish Whois records as GDPR row escalates

Kevin Murphy, October 23, 2017, Domain Policy

Two Dutch geo-gTLDs are refusing to provide public access to Whois records in what could be a sign of things to come for the whole industry under new European privacy law.

Both .amsterdam and .frl appear to be automatically applying privacy to registrant data and say they will only provide full Whois access to vetted individuals such as law enforcement officials.

ICANN has evidently slapped a breach notice on both registries, which are now complaining that the Whois provisions in their Registry Agreements are “null and void” under Dutch and European Union law.

FRLregistry and dotAmsterdam, based in the Netherlands, are the registries concerned. They’re basically under the same management and affiliated with the local registrar Mijndomein.

dotAmsterdam operates under the authority of the city government. .frl is an abbreviation of Friesland, a Dutch province.

Both companies’ official registry sites, which are virtually identical, do not offer links to Whois search. Instead, they offer a statement about their Whois privacy policy.

That policy states that Dutch and EU law “forbids that names, addresses, telephone numbers or e-mail addresses of Dutch private persons can be accessed and used freely over the internet by any person or organization”.

It goes on to state that any “private person” that registers a domain will have their private contact information replaced with a “privacy protected” message in Whois.

Legal entities such as companies do not count as “private persons”.

Under the standard ICANN Registry Agreement, all new gTLDs are obliged to provide public Whois access under section 2.5. According to correspondence from the lawyer for both .frl and .amsterdam, published by ICANN, the two registries have been told they are in breach.

It seems the breach notices have not yet escalated to the point at which ICANN publishes them on its web site. At least, they have not been published yet for some reason.

But the registries have lawyered up already, regardless.

A letter from Jetse Sprey of Versteeg Wigman Sprey to ICANN says that the registries are free to ignore section 2.5 of their RAs because it’s not compliant with the Dutch Data Protection Act and, perhaps more significantly, the EU General Data Protection Regulation.

The GDPR is perhaps the most pressing issue for ICANN at the moment.

It’s an EU law due to come into effect in May next year. It has the potential to completely rewrite the rules of Whois access for the entire industry, sidestepping the almost two decades of largely fruitless ICANN community discussions on the topic.

It covers any company that processes private data on EU citizens; breaching it can incur fines of up to €20 million or 4% of revenue, whichever is higher.

One of its key controversies is the idea that citizens should have the right to “consent” to their personal data being processed and that this consent cannot be “bundled” with access to the product or service on offer.

According to Sprey, because the Registry Agreement does not give registrants a way to register a domain without giving their consent to their Whois details being published, it violates the GDPR. Therefore, his clients are allowed to ignore that part of the RA.

These two gTLDs are the first I’m aware of to openly challenge ICANN so directly, but GDPR is a fiercely hot topic in the industry right now.

During a recent webinar, ICANN CEO Goran Marby expressed frustration that GDPR seems to have come about — under the watch of previous CEOs — without any input from the ICANN community, consideration in the EU legislative process of how it would affect Whois, or even any discussion within ICANN’s own Governmental Advisory Committee.

“We are seeing an increasing potential risk that the incoming GDPR regulation will mean a limited WHOIS system,” he said October 4. “We appreciate that for registers and registers, this regulation would impact how you will do your business going forward.”

ICANN has engaged EU legal experts and has reached out to data commissioners in the 28 EU member states for guidance, but Marby pointed out that full clarity on how GDPR affects the domain industry could be years away.

It seems possible there would have to be test cases, which could take five years or more, in affected EU states, he suggested.

ICANN is also engaging with the community in its attempt to figure out what to do about GDPR. One project has seen it attempt to gather Whois use cases from interested parties. Long-running community working groups are also looking at the issue.

But the domain industry has accused ICANN the organization of not doing enough fast enough.

Paul Diaz and Graeme Bunton, chairs of the Registries Stakeholder Group and Registrars Stakeholder Group respectively, have recently escalated the complaints over ICANN’s perceived inaction.

They told Marby in a letter that they need to have a solution in place in the next 60 days in order to give them time to implement it before the May 2018 GDPR deadline.

Complaining that ICANN is moving too slowly, the October 13 letter states:

The simple fact is that the requirements under GDPR and the requirements in our contracts with ICANN to collect, retain, display, and transfer personal data stand in conflict with each other.

GDPR presents a clear and present contractual compliance problem that must be resolved, regardless of whether new policy should be developed or existing policy adjusted. We simply cannot afford to wait any longer to start tackling this problem head-on.

For registries and registrars, the lack of clarity and the risk of breach notices are not the only problem. Many registrars make a bunch of cash out of privacy services; that may no longer be as viable a business if privacy for individuals is baked into the rules.

Other interests, such as the Intellectual Property Constituency (in favor of its own members’ continued access to Whois) and non-commercial users (in favor of a fundamental right to privacy) are also complaining that their voices are not being heard clearly enough.

The GDPR issue is likely to be one of the liveliest sources of discussion at ICANN 60, the public meeting that kicks off in Abu Dhabi this weekend.

UPDATE: This post was updated October 25 to add a sentence clarifying that companies are not “private persons”.

Halloran made ICANN’s first chief data protection officer

Kevin Murphy, July 31, 2017, Domain Policy

ICANN lifer Dan Halloran has added the title of chief data protection officer to his business card.

The long-serving deputy general counsel was named ICANN’s first CDPO on Friday, continuing to report to his current boss, general counsel John Jeffrey.

Privacy is currently the hottest topic in the ICANN community, with considerable debate about how contracted parties might be able to reconcile their ICANN obligations with forthcoming European data protection legislation.

But Halloran’s new role only covers the protection of personal data that ICANN itself handles; it does not appear to give him powers in relation to ongoing discussions about how registries and registrars comply with data privacy regulations.

He will be tasked with overseeing privacy frameworks for data handling and conducting occasional reviews, ICANN said.

ICANN has on occasion messed up when it comes to privacy, such as when it accidentally published the home addresses of new gTLD applicants in 2012, or when it made sensitive applicant financial data openly searchable on its applicant portal.

Halloran joined ICANN over 17 years ago and before his deputy GC position served as chief registrar liaison.

ICANN loosens Whois privacy rules for registrars

Kevin Murphy, April 20, 2017, Domain Policy

ICANN has made it easier for registries and registrars to opt-out of Whois-related contractual provisions when they clash with local laws.

From this week, accredited domain firms will not have to show that they are being investigated by local privacy or law enforcement authorities before they can request a waiver from ICANN.

Instead, they’ll be also be able to request a waiver preemptively with a statement from said authorities to the effect that the ICANN contracts contradict local privacy laws.

In both cases, the opt-out request will trigger a community consultation — which would include the Governmental Advisory Committee — and a review by ICANN’s general counsel, before coming into effect.

The rules are mainly designed for European companies, as the EU states generally enjoy stricter privacy legislation than their North American counterparts.

European registrars and registries have so far been held to a contract that may force them to break the law, and the only way to comply with the law would be to wait for a law enforcement proceeding.

ICANN already allows registrars to request waivers from the data retention provisions of the 2013 Registrar Accreditation Agreement — which require the registrar to hold customer data for two years after the customer is no longer a customer.

Dozens of European registrars have applied for and obtained this RAA opt-out.

Pirate Bay founder launches piracy-friendly domain privacy service

Kevin Murphy, April 19, 2017, Domain Registrars

The founder of controversial BitTorrent search engine The Pirate Bay has entered the domain name market with a new proxy service.

It’s called Njalla, it’s based in a Caribbean tax haven, and it says it offers a higher level of privacy protection than you get anywhere else.

The company described itself in its inaugural blog post today like this:

Think of us as your friendly drunk (but responsibly so) straw person that takes the blame for your expressions. As long as you keep within the boundaries of reasonable law and you’re not a right-wing extremist, we’re for promoting your freedom of speech, your political weird thinking, your kinky forums and whatever.

Founder Peter Sunde was reluctant to describe Njalla as a proxy registration service, but it’s difficult to think of another way of describing it.

When you buy a domain via the company’s web site, the name is registered by Njalla for itself. You can still use the domain as you would with a regular registrar, but the name is “owned” by Njalla (1337 LLC, based in Saint Kitts & Nevis).

The company is a Tucows reseller via OpenSRS, and it supports almost all gTLDs and several ccTLDs (it’s declined to support Uniregistry due to recent price increase announcements).

Prices are rather industry standard, with a .com setting you back €15 ($16).

The big difference appears to be that the service doesn’t want to know anything about its registrants. You can sign up with just an email address or, unusually, an XMPP address. It doesn’t want to know your name, home address, or anything like that.

This means that whenever Njalla receives a legal request for the user’s identity, it doesn’t have much to hand over.

It’s based on Nevis due to the strong privacy laws there, Sunde said.

Under what circumstances Njalla would suspend service to a customer and hand over their scant private information appears to be somewhat vague and based on the subjective judgement or politics of its management.

“As long as you don’t hurt anyone else, we’ll let you do your thing,” Sunde said.

Child abuse material is verboten. Spam is in a “gray zone” (although forbidden by Njalla’s terms of service).

Copyright infringement appears to be just fine and dandy, which might not be surprising. Sunde founded The Pirate Bay in 2003 and spent time in prison in Sweden for assisting copyright infringement as a result.

“You don’t hurt people by putting a movie online,” Sunde said. “You do hurt someone by putting child porn or revenge porn or stuff like that… If you look at any statistics on file sharing, it proves that the more people file-share the more money goes into the ecosystem of the media.”

While this is likely to upset the IP lobby within the domain name community, I think there’s a possibility that existing ICANN policy will soon have an impact on Njalla’s ability to operate as it hopes.

ICANN is in the process of implementing a privacy/proxy services accreditation program that will require registrars to only work with approved, accredited proxy services.

Sunde thinks Njalla doesn’t fall into the ICANN definition of a proxy service, and said his lawyers agree.

Personally, I can’t see the distinction. I expect ICANN Compliance will probably have to make a call one way or the other one day after the accreditation system comes online.

Did Whois blow the lid off a Labour leadership coup, or is this just pig-fuckery?

Kevin Murphy, February 28, 2017, Gossip

A British Member of Parliament has been forced to deny he was behind the registration of several domain names promoting him as a future leader of the Labour party.

Clive Lewis, until recently a member of the shadow cabinet, told the Guardian yesterday that he did not register the batch of domains, which included cliveforleader.org.uk, cliveforlabour.org.uk and their matching .org, .uk and .co.uk domains.

“None of this is true: I haven’t done this,” he told the paper, following a Huffington Post article revealing the names had been registered June 29 last year, just a couple of days after he was appointed shadow defence secretary.

Lewis resigned from the shadow cabinet three weeks ago after refusing to vote in favor of triggering the Article 50 process that will take the UK out of the European Union.

The Labour Party has been dogged by stories about potential leadership challenges ever since Jeremy Corbyn — popular among grassroots party members, unpopular with voters — took over.

Questions about Corbyn’s leadership reemerged last week after a disastrous by-election defeat for the party.

The domains were taken as an indication that Lewis had been plotting a coup for many months, which he has denied.

The Whois records do not support a conclusion one way or another.

Under Nominet rules, individuals are allowed to keep their phone number, postal and email addresses out of Whois if the domains are to be used for non-commercial purposes, a right the registrant of the names in question chose to exercise.

Public Whois records show the .uk names registered to “Clive Lewis”, but contain no contact information.

They do contain the intriguing statement “Nominet was able to match the registrant’s name and address against a 3rd party data source on 29-Jun-2016”, a standard notice under Nominet’s Whois validation program.

But Nominet does not validate the identity of registrants, nor does it attempt to link the registrant’s name to their purported address.

The statement in the Whois records translates merely that Nominet was able to discover that a person called Clive Lewis exists somewhere in the world, and that the postal address given is a real address.

The .org and .com domains, registered the same day by the same registrar, use a Whois privacy service and contain no information about the registrant whatsoever.

Lewis himself suspects the batch of names may have been registered by a political opponent in order to force him to deny that he registered them, noting that fellow MP Lisa Nandy had a similar experience last July.

His initial statement to HuffPo, on which he reportedly declined to elaborate, was:

A lesson from LBJ [US President Lyndon B Johnson] in how to smash an opponent. Legend has it that LBJ, in one of his early congressional campaigns, told one of his aides to spread the story that Johnson’s opponent f*cked pigs. The aide responded: ‘Christ, Lyndon, we can’t call the guy a pigf*cker. It isn’t true.’ To which LBJ supposedly replied: ‘Of course it ain’t true, but I want to make the son-of-a-bitch deny it.’

Since then, along with his denial to the Guardian, he’s told his local Norwich newspaper that he’s tasked his lawyers with finding out who registered the names.

“I have instructed a solicitor to go away and look at this. They can try and make sure we find the identity, the IP address and the payment details,” he told the Eastern Daily Press.