Law enforcement and IP owners were dealt a setback last week when the National Arbitration Forum ruled that they cannot block domain transfers unless they have a court order.
The ruling could make it more difficult for registrars to acquiesce to requests from police trying to shut down piracy sites, as they might technically be in breach of their ICANN contracts.
NAF panelist Bruce Meyerson made the call in a Transfer Dispute Resolution Policy ruling after a complaint filed by EasyDNS against Directi (PublicDomainRegistry.com).
You’re probably asking right about now: “The what policy?”
I had to look it up, too.
It’s designed for disputes where one registrar refuses to transfer a domain to another. As part of the IRTP, it’s a binding part of the Registrar Accreditation Agreement.
It seems to have been rarely used in full over the last decade, possibly because the first point of complaint is the registry for the TLD in question, with only appeals going to a professional arbitrator.
Only NAF and the Asian Domain Name Dispute Resolution Centre are approved to handle such cases, and their respective records show that only one TDRP appeal has previously filed, and that was in 2013.
In the latest case, Directi had refused to allow the transfer of three domains to EasyDNS after receiving a suspension request from the Intellectual Property Crime Unit of the City of London Police.
The IPCU had sent suspension requests, targeting music download sites “suspected” of criminal activity, to several registrars.
The three sites — maxalbums.com, emp3world.com, and full-albums.net — are all primarily concerned with hosting links to pirated music while trying to install as much adware as possible on visitors’ PCs.
The registrants of the names had tried to move from India-based Directi to Canada-based EasyDNS, but found the transfers denied by Directi.
EasyDNS, which I think it’s fair to say is becoming something of an activist when it come to this kind of thing, filed the TDRP first with Verisign then appealed its “No Decision” ruling to NAF.
NAF’s Meyerson delivered a blunt, if reluctant-sounding, win to EasyDNS:
Although there are compelling reasons why the request from a recognized law enforcement agency such as the City of London Police should be honored, the Transfer Policy is unambiguous in requiring a court order before a Registrar of Record may deny a request to transfer a domain name… The term “court order” is unambiguous and cannot be interpreted to be the equivalent of suspicion of wrong doing by a policy agency.
To permit a registrar of record to withhold the transfer of a domain based on the suspicion of a law enforcement agency, without the intervention of a judicial body, opens the possibility for abuse by agencies far less reputable than the City of London Police.
That’s a pretty unambiguous statement, as far as ICANN policy is concerned: no court order, no transfer block.
It’s probably not going to stop British cops trying to have domains suspended based on suspicion alone — the Metropolitan Police has a track record of getting Nominet to suspend thousands of .uk domains in this way — but it will give registrars an excuse to decline such requests when they receive them, if they want the hassle.
European privacy regulators have slammed the new 2013 Registrar Accreditation Agreement, saying it would be illegal for registrars based in the EU to comply with it.
The Article 29 Working Party, which comprises privacy regulators from the 27 European Union nations, had harsh words for the part of the contract that requires registrars to store data about registrants for two years after their domains expire.
In a letter (pdf) to ICANN last month, Article 29 states plainly that such provisions would be illegal in the EU:
The fact that these personal data can be useful for law enforcement does not legitimise the retention of these personal data after termination of the contract. Because there is no legal ground for the data processing, the proposed data retention requirement violates data protection law in Europe.
The 2013 RAA allows any registrar to opt out of the data retention provisions if it can prove that to comply would be illegal its own jurisdiction.
The Article 29 letter has been sent to act as blanket proof of this for all EU-based registrars, but it’s not yet clear if ICANN will treat it as such.
The letter goes on to sharply criticize ICANN for allowing itself to be used by governments (and big copyright interests) to circumvent their own legislative processes. It says:
The fact that these data may be useful for law enforcement (including copyright enforcement by private parties) does not equal a necessity to retain these data after termination of the contract.
the Working Party reiterates its strong objection to the introduction of data retention by means of a contract issued by a private corporation in order to facilitate (public) law enforcement.
If there is a pressing social need for specific collections of personal data to be available for law enforcement, and the proposed data retention is proportionate to the legitimate aim pursued, it is up to national governments to introduce legislation
So why is ICANN trying to get many of its registrars to break the law?
While it’s tempting to follow the Article 29 WP’s reasoning and blame law enforcement agencies and the Governmental Advisory Committee, which pushed for the new RAA to be created in the first place, the illegal data retention provisions appear to be entirely ICANN’s handiwork.
The original law enforcement demands (pdf) say registrars should “securely collect and store” data about registrants, but there’s no mention of the period for which it should be stored.
And while the GAC has expressly supported the LEA recommendations since 2010, it has always said that ICANN should comply with privacy laws in their implementation.
The GAC does not appear to have added any of its own recommendations relating to data retention.
However, the European Commission’s GAC representative then seemed to dismiss the WP’s concerns during ICANN’s public meeting in Toronto last October.
Perhaps ICANN was justifiably confused by these mixed messages.
According to Michele Neylon, chair of the Registrars Stakeholder Group, it has yet to respond to European registrars’ inquiries about the Article 29 letter, which was sent June 6.
“We hope that ICANN staff will take the letter into consideration, as it is clear that the data protection authorities do not want create extra work either for themselves or for registrars,” Neylon said.
“For European registrars, and non-European registrars with a customer base in the EU, we look forward to ICANN staff providing us with clarity on how we can deal with this matter and respect EU and national law,” he said.
ICANN’s board of directors is set to vote next week on the 2013 Registrar Accreditation agreement, but we hear some last-minute objections have emerged from registrars.
The new RAA has been about two years in the making. It will make registrars verify email addresses and do some rudimentary mailing address validation when new domains are registered.
It will also set in motion a process for ICANN oversight of proxy/privacy services and some aspects of the reseller business. In order to sell domain names in new gTLDs, registrars will have to sign up to the 2013 RAA.
ICANN has put approval of the contract on its board’s June 27 agenda.
But I gather that some registrars are unhappy about some last-minute changes ICANN has made to the draft deal.
For one, some linguistic tweaks to the text have given registrars an “advisory” role in seeking out technical ways to do the aforementioned address validation, which has caused some concern that ICANN may try to mandate expensive commercial solutions without their approval.
There also appears to be some concern that the new contract now requires registrars to make sure their resellers follow the same rules on proxy/privacy services, which wasn’t in previous drafts.
Afilias and Neustar will be soon able to sell .biz and .info domains direct, and may have to shut down registrars that refuse to sign up to the new 2013 Registrar Accreditation Agreement.
Those are two of the biggest changes proposed to the companies’ ICANN contracts, drafts of which were published this morning six months after their last registry agreements expired.
The new .biz and .info deals would allow both companies to vertically integrate — that is, own a controlling position in a registrar that sells domains in their respective gTLDs.
This would remove unwanted friction from their sales and marketing efforts, but would mean both registries would start competing with their own registrar channel in the retail market.
That’s currently not allowed in almost all gTLD contracts, but is expected to become commonplace in the era of new gTLDs, which have no such ownership restrictions.
These new vertical integration clauses were not unexpected; it’s been envisaged for a couple of years that the restrictions would be dropped in legacy gTLDs.
What is surprising are newly proposed clauses that would oblige Neustar and Afilias to terminate accredited registrars’ access to their TLDs if they don’t sign up to the 2013 RAA.
Under the process set out in the contracts, when registrars representing 67% of the domains in each given TLD have signed up to the 2013 RAA, all the other registrars would have between 270 and 330 days to also sign up to it or lose their ability to access the .biz/.info registries.
That would mean no selling new names and no accepting inbound transfers — a growth death sentence in the affected TLDs.
In the case of .info, in which Go Daddy has a 45% market share, it would only take the top four registrars to sign up to the 2013 RAA before the clock started ticking for the others.
However, this 67% rule would only kick in for Afilias and Neustar if Public Interest Registry and Verisign also voluntarily agree to the same rules for their .org, .com and .net gTLDs.
It’s a pretty aggressive move by ICANN to push the 2013 RAA onto registrars via its contracts with registries, but not the first.
In the separately proposed base New gTLD Registry Agreement, expected to be finalized in the next few weeks, registrars can only sell new gTLD domains if they’re on the 2013 RAA.
Other changes to the .biz and .info contracts include giving the registries the ability to block certain domains from registration to deal with security threats. Registries have been doing this since Conficker, but now they’ll be explicitly allowed to under their contracts.
They’ll also now be subject to the same emergency back-end transition provisions as new gTLDs, in the event of a catastrophic failure.
Both companies will also get to keep their ability to raise registry fees by 10% a year.
Presumably, given that the US Department of Commerce is not party to the .biz and .info deals, neither registry will get the same nasty surprise that Verisign got last year when Commerce froze its prices.
The previous contracts actually expired last December but were extended for six months due to ICANN’s focus on new gTLDs and the fact that it wanted to bring both agreements closer to the new gTLD contract.
Big changes are coming to Whois, privacy services and resellers, among other things, under the terms of a newly agreed contract between domain name registrars and ICANN.
A proposed 2013 Registrar Accreditation Agreement that is acceptable to the majority of registrars, along with a plethora of supporting documentation, has been posted by ICANN this morning.
This “final” version, which is expected to be approved by ICANN in June, follows 18 months of often strained talks between ICANN and a negotiating team acting for all registrars.
It’s expected that only 2013 RAA signatories will be able to sell domain names in new gTLDs.
Overall, the compromise reflects ICANN’s desire to ensure that all registrars adhere to the same high standards of conduct, bringing contractual oversight to some currently gray, unregulated areas.
It also provides registrars with greater visibility into their future businesses while giving ICANN ways to update the contract in future according to the changing industry landscape.
For registrants, the biggest changes are those that came about due to a set of 12 recommendations made a few years ago by law enforcement agencies including the FBI and Interpol.
Notably, registrars under the 2013 RAA will be obliged to verify the phone number or email address of each registrant and suspend the domains of those it cannot verify.
That rule will apply to both new registrations, inter-registrar transfers and domains that have changes made to their Whois records. It will also apply to existing registrations when registrars have been alerted to the existence of possibly phony Whois information.
It’s pretty basic stuff. Along with provisions requiring registrars to disclose their business identities and provide abuse points of contact, it’s the kind of thing that all responsible online businesses should do anyway (and indeed all the big registrars already do).
Registrars have also agreed to help ICANN create an accreditation program for proxy and privacy services. Before that program is created, they’ve agreed to some temporary measures to regulate such services.
This temporary spec requires proxy services to investigate claims of abuse, and to properly inform registrants about the circumstances under which it will reveal their private data.
It also requires the proxy service to hold the registrant’s real contact data in escrow, to be accessed by ICANN if the registrar goes out of business or has its contract terminated.
This should help registrants keep hold of their names if their registrar goes belly-up, but of course it does mean that their private contact information will be also stored by the escrow provider.
But the biggest changes in this final RAA, compared to the previously posted draft versions, relate to methods of changing the contract in future.
Notably, registrars have won the right to perpetual renewal of their contracts, giving them a bit more long-term visibility into their businesses.
Under the current arrangement, registrars had to sign a new RAA every five years but ICANN was under no obligation to grant a renewal.
The 2013 contract, on the other hand, gives registrars automatic renewal in five-year increments after the initial term expires, as long as the registrar remains compliant.
The trade-off for this is that ICANN has codified the various ways in which the agreement can be modified in future.
The so-called “unilateral right to amend” clauses introduced a few months ago — designed to enable “Special Amendments” — have been watered down now to the extent that “unilateral” is no longer an accurate way to describe them.
If the ICANN board wants to introduce new terms to the RAA there’s a series of complex hoops to jump through and more than enough opportunities for registrars to kill off the proposals.
Indeed, there are so many caveats and a so many procedural kinks that would enable registrars to prevent ICANN taking action without their consent I’m struggling to imagine any scenario in which the Special Amendment process is successfully used by the board.
But the final 2013 RAA contains something entirely new, too: a way for ICANN’s CEO to force registrars back to the negotiating table in future.
This seems to have made an appearance at this late stage of negotiations precisely because the Special Amendment process has been castrated.
It would enable ICANN’s CEO or the chair of the Registrars Stakeholder Group to force the other party to start talking about RAA amendments with a “Negotiation Notice”. If the talks failed, all concerned would head to mediation, and then arbitration, to sort out their differences.
My guess is that this Negotiation Notice process is much more likely to be used than the Special Amendment process.
It seems likely that these terms will provide the template for similar provisions in the new gTLD Registry Agreement, which is currently under negotiation.
The 2013 RAA public comment period is open until June 4, but I don’t expect to see any major changes after that date. The documents can be downloaded, and comments filed, here.