Another deadline missed in registrar contract talks

ICANN and domain name registrars will fail to agree on a new Registrar Accreditation Agreement by the end of the year, ICANN has admitted.
In a statement Friday, ICANN said that it will likely miss its end-of-year target for completing the RAA talks:

While the registrars and ICANN explored potential dates for negotiation in December 2012, both sides have agreed that between holidays, difficult travel schedules and the ICANN Prioritization Draw for New gTLDs, a December meeting is not feasible. Therefore, negotiations will resume in January 2013, and the anticipated date for publication of a draft RAA for community comment will be announced in January as well.

The sticking point appears to still be the recommendations for strengthening registrars’ Whois accuracy commitments, as requested by law enforcement agencies and governments.
At the Toronto meeting in October, progress appeared to have been made on all 12 of the LEA recommendations, but the nitty-gritty of the Whois verification asks had yet to be ironed out.
Potentially confusing matters, ICANN has launched a parallel root-and-branch Whois policy reform initiative, a community process which may come to starkly different conclusions to the RAA talks.
Before the LEA issues are settled, ICANN doesn’t want to start dealing with requests for RAA changes from the registrars themselves, which include items such as dumping their “burdensome” port 43 Whois obligations for gTLD registries that have thick Whois databases.
ICANN said Friday:

Both ICANN and the registrars have additional proposed changes which have not yet been negotiated. As previously discussed, it has been ICANN’s position that the negotiations on key topics within the law enforcement recommendations need to come to resolution prior to concluding negotiations on these additional areas.

Registrars agreed under duress to start renegotiating the RAA following a public berating from the Governmental Advisory Committee at the ICANN Dakar meeting October 2011.
At the time, the law enforcement demands had already been in play for two years with no substantial progress. Following Dakar, ICANN and the registrars said they planned to have a new RAA ready by March 2012.
Judging by the latest update, it seems quite likely that the new RAA will be a full year late.
ICANN has targeted the Beijing meeting in April next year for approval of the RAA. It’s one of the 12 targets Chehade set himself following Toronto.
Given that the draft agreement will need a 42-day public comment period first, talks are going to have to conclude before the end of February if there’s any hope of hitting that deadline.

ICANN asks: just what the hell is Whois for anyway?

It’s back to basics time at ICANN, with the launch today of a massive effort to take a fresh look at Whois.
This could be a biggie.
“We’re going to go back to the fundamentals and ask: what problems are being addressed by Whois, who’s using it and what are they using it for?” ICANN chair Steve Crocker told DI.
The ICANN board of directors earlier this month passed a resolution, published today, that calls for:

a new effort to redefine the purpose of collecting, maintaining and providing access to gTLD registration data, and consider safeguards for protecting data, as a foundation for new gTLD policy and contractual negotiations

This is bare-bones, fundamental stuff, likely to encompass pretty much every controversial issue to hit Whois over the years.
Crocker noted that the use of Whois, originally designed to help people locate the operators of large multi-user computing services, has changed over the years.
Is Whois now there to help law enforcement track down crooks? Is it there to help intellectual property owners enforce their rights? Should it help domainers verify who they’re transacting with?
Should published Whois records always be complete and accurate? Is there a right to privacy in Whois?
These are the some of the big questions that ICANN has tried and failed to grapple with over the last decade, and Crocker said that now is the time to answer them.
“My own feeling is that this must not suffer from the endless delays it has in the past, but at the same time it’s essential that we get it right rather than get it done quickly,” he said.
The new board resolution didn’t appear of thin air, however.
It’s a response to the recommendations of the Whois Policy Review Team, which earlier this year called for ICANN to make a Whois a strategic priority.
The review team itself was set up to comply with ICANN’s Affirmation of Commitments with the US Department of Commerce, one of ICANN’s core documents and part of the basis of its legitimacy.
But the AoC may presuppose certain outcomes of any root-and-branch Whois reform, calling as it does for a Whois policy that “meets the legitimate needs of law enforcement and promotes consumer trust”.
Crocker said that doesn’t necessarily rule out a big rethink about the way Whois data is accessed.
“Today, all of the information in Whois is published for the public,” he said. “Anyone can get at it, it doesn’t matter if you’re competitor or friend or law enforcement, you can get access.”
“A point of discussion could be: would it make sense to make different levels of access to information available to different people?” he added.
As an analogy, he pointed to car license plates. If you’re a cop and you see a suspicious vehicle you can trace the owner, but if you’ve just taken a fancy to the driver it’s harder to get their number.
Crocker noted that he’s not presupposing any outcomes of the review.
As well as calling for the review, the board’s latest resolution also calls for existing Whois rules, such as they are, to continue to be strictly adhered to. The resolution:

directs the CEO to continue to fully enforce existing consensus policy and contractual conditions relating to the collection, access and accuracy of gTLD registration data

This second prong of the approach is no doubt designed in part to remind contracted parties that just because Whois is open for review it doesn’t mean they can start ignoring compliance notices.
However, it’s going to be interesting to see how Whois reform plays into open discussions such as the renegotiation of the Registrar Accreditation Agreement.
The big stumbling blocks in the RAA talks right now relate directly to Whois verification, so registrars might be able to start arguing that agreeing to ICANN’s demands might preempt the review.
But Crocker doesn’t think that should happen.
“An examination of the fundamentals of Whois should not serve as as way of stalling or pulling back on the current system,” he said.
It’s not entirely clear what the next steps are for the Whois review.
There will be a board-mandated GNSO Policy Development Process somewhere down the line, but not until CEO Fadi Chehade has conducted some kind of outreach and information-gathering, it seems.
How long this will take is not known, but I get the impression the board wants to move relatively quickly. The PDP, I would guess, will take a couple of years at least.
Chehade said in his opening address during the Toronto meeting last month that long-standing disagreements over the purpose of Whois should be relatively “easy” to resolve.
Let’s see if he’s correct. I wouldn’t put money on it.

Chehade sets out 12-point plan for next six months

ICANN CEO Fadi Chehade has set out his goals for ICANN over the next six months in an open letter to the community.
The ambitious 12-point to-do list includes finishing off the next Registrar Accreditation Agreement, finalizing the Trademark Clearinghouse, and launching “a community effort” to address the Whois debate.
The document was described by Chehade at the close of the Toronto meeting last month as his “scorecard” for “what I plan to prioritize and do between now and Beijing”.
The next big ICANN meeting is in Beijing next April.
The letter states that “operational excellence”, something the organization was frequently criticized for its lack of under its previous leadership, is ICANN’s “highest priority”.
The new gTLD program is naturally a big part of that. Chehade said that ICANN plans to:

Deliver on every aspect of the new gTLD program launch next year, meeting obligations and securing the necessary resources and personnel to lead the transition from what has been a policy-driven effort to implementation of a responsive and reliable operation. As a first step, we are working to advance the dialogue on implementation of the Trademark Clearing House. We must also execute the prioritization draw, evaluations, and pre-delegation tests flawlessly.

As part of that effort, a new gTLD services department will be created. Part of its task will be to monitor policy work to make sure the policies being created are “implementable”.
Chehade said that the divisive Whois issue, which he controversially referred to as an “easy” problem to solve during remarks in Toronto, will be subject to a new review:

To strengthen our commitment to the public interest, we will launch a community effort addressing the WHOIS debate in a strategic way, to resolve the longstanding open items in this area.

On the RAA, Chehade said that ICANN “will plan to reach consensus on a solid and enforceable Registrar Accreditation Agreement that is fair and balanced.”
The full letter, which also sets out goals for internationalization and the evolution of the multi-stakeholder model, can be downloaded here.

ICANN 45: Super-Fadi targets Trademark Clearinghouse and RAA talks

There can be no denying that ICANN’s new CEO was well received at the Toronto meeting last week.
From his opening speech, a sleeves-rolled-up address that laid out his management goals, and throughout the week, Fadi Chehadé managed to impress pretty much everybody I spoke to.
Now Chehadé has turned his attention to the formative Trademark Clearinghouse and the Registrar Accreditation Agreement talks, promising to bring the force of his personality to bear in both projects.
“I’m coming out of Toronto with two priorities for this year,” he said during an interview with ICANN’s media relations chief, Brad White, last Friday.
“The first one is obviously to get the Trademark Clearinghouse to work as best as possible, for all parties to agree we have a mechanism that can satisfy the interests of the parties.”
“The second one is the RAA,” he said. “Without question I’m going to be inserting myself personally into both these, including the RAA.”
These are both difficult problems.
Work on the TMCH hit a snag early last week when ICANN chief strategy officer Kurt Pritz told the GNSO Council that the “community consensus” implementation model proposed by registries presented a big problem.
The “live query model” proposed for the Trademark Claims service, which would require the TMCH to sit in the live domain registration path, should be taken “off the table”, he said.
ICANN is/was worried that putting a live database of trademark checks into the registration model that has functioned fairly well for the last decade is a big risk.
The TMCH would become a single point of failure for the whole new gTLD program and any unanticipated downtime, ICANN has indicated, would be hugely embarrassing for ICANN.
“I’m personally concerned that once you put the Clearinghouse in the path for that it’s very difficult to unring the bell, so I’d rather proceed in a way that doesn’t change that,” Pritz said.
His remarks, October 14, angered backers of the community model, who estimated that the live query model would only affect about 10% to 15% of attempted domain registrations.
“Taking it off the table is a complete mistake,” said Jeff Neuman of Neustar, one of the authors of the alternative “community” TMCH model.
“It is a proven fact that the model we have proposed is more secure and, we believe, actually looks out much more in favor of protecting trademark holders,” he said.
He noted that the community model was created in a “truly bottom-up” way — the way ICANN is supposed to function.
NetChoice’s Steve DelBianco, in a rare show of solidarity between the Business Constituency and the registries, spoke to support Neuman and the centralized community model.
“The BC really supports a centralized Trademark Clearinghouse model, and that could include live query,” DelBianco said. “I’m disturbed by the notion that an executive decision took it off the table.”
“My question is, was that the same executive decision that brought us the TAS and its glitches?” he added. “Was it the same executive decision process that gave us Digital Archery that couldn’t shoot straight?”
Pritz pointed out the logical flaw in DelBianco’s argument.
“The group that brought you TAS and Digital Archery… you want to put that in the critical path for domain names?” he said. “Our job here is to protect trademark rights, not change the way we register domain names.”
But Neuman and DelBianco’s dismay was short-lived. Within a couple of hours, in the same room, Chehadé had told the GNSO Council, in a roundabout sort of way, that the live query model was not dead.
Chehadé’s full remarks are missing from the official transcript (pdf), and what remains is attributed to GNSO Council chair Stephane Van Gelder, but I’ve taken a transcript from my own recording:

The very first week I was on the job, I was presented with a folder — a very nice little folder — and little yellow thing that said “Sign Here”.
So I looked at what I’m signing, as I normally do, and I saw that moving forward with a lot of activities related to the Trademark Clearinghouse as really what I’m being asked to move forward with.
And I’ll be frank with you, my first reaction was: do all the people who will be affected by this agreement… did we hear them all about this before we sign this? Are they all part of the decision-making that led us here?
And the answer was muddled, it was “Yes… and…”. I said: No, I want to make sure that we use the time we have in Toronto make sure we listen to everybody to make sure before I commit any party — any party — to anything, that this party is very much part of the process and part of the solution.

I know I wasn’t the only person in the room to wonder if the anecdote described an incident in which an ICANN executive attempted to pull a fast one on his new, green boss.
A day later, after private discussion with ICANN board and staff, supporters of the community TMCH model told me they were very encouraged that the live query model was still in play.
The problem they still face, however, is that the Intellectual Property Constituency — ostensibly representing the key customers of the TMCH — is publicly still on the fence about which model it prefers.
Without backing from the IPC, any TMCH implementation model would run the risk of appearing to serve contracted parties’ cost and risk requirements at the expense of brand owners.
Getting the IPC to at least take a view will likely be Chehadé’s first priority when it comes to the TMCH.
Finding common ground on the Registrar Accreditation Agreement could be an even more complex task.
While the bulk of the work — integrating requests from certain law enforcement agencies and the Governmental Advisory Committee into the contract — has been completed, Whois remains a challenge.
European registrars claim, in the light of correspondence from a EU privacy watchdogs, that implementing ICANN’s demanded Whois data re-verification and retention rules would make them break the law.
Registrars elsewhere in the world are less than impressed with ICANN’s proposed ‘opt-out’ solution, which would essentially create a two-tier RAA and may, they say, have some impact on competition.
Privacy advocates in Toronto told ICANN that if certain governments (largely, I suspect, the US) want their own local registrars to retain and re-verify Whois data, they should pass laws to that effect, rather than asking ICANN to enforce the rule globally.
The GAC told ICANN’s board of directors last Tuesday that the privacy letters emerging from the EU did not represent the views of the European Commission or the GAC, and nothing more was said on the matter.
How ICANN reacts to the European letters now seems to be rest with ICANN’s executive negotiating team.
While everyone at ICANN 45 seemed to be super-impressed by Chehadé’s competence and vision for sorting out ICANN, the other recurring meme is that actions speak louder than words.
During his first 40 days in the job he managed to persuade India into an about-face on its support for an intergovernmental replacement for ICANN, an impressive feat.
Can he chalk up more early wins by helping resolve the TMCH and RAA deadlocks?
“There’s frankly universal agreement that if I participate personally in these activities I would help these activities come to hopefully a reasonably conclusion that we can bank on,” he said in the White interview.

EU plays down “unlawful” Whois data worries

The European Commission yesterday gave short shrift to recent claims that ICANN’s proposed Whois data retention requirements would be “unlawful” in the EU.
A recent letter from the Article 29 Working Party — an EU data protection watchdog — had said that the next version of the Registrar Accreditation Agreement may force EU registrars to break the law.
The concerns were later echoed by the Council of Europe.
But the EC stressed at a session between the ICANN board of directors and Governmental Advisory Committee yesterday that Article 29 does not represent the official EU position.
That’s despite the fact that the Article 29 group is made up of privacy commissioners from each EU state.
Asked about the letter, the EC’s GAC representative said:

Just to put everyone at ease, this is a formal advisory group concerning EU data privacy protection.
…
They’re there to give advice and they themselves, and we as well, are very clear that they are independent of the European Union. That gives you an idea that this is not an EU position as such but the position of the advisory committee.

The session then quickly moved on to other matters, dismaying privacy advocates in the room.
Milton Mueller of the Internet Governance Project tweeted:

By telling ICANN that it can ignore Art 29 WG opinion on privacy, European commission is telling ICANN it can ignore their national DP [data privacy] laws

Registrars hopeful that the Article 29 letter would put another nail into the coffin of some of ICANN’s more unpalatable and costly RAA demands also expressed dismay.
ICANN’s current position, based on input from law enforcement and the GAC, is that the RAA should contain new more stringent requirements on Whois data retention and verification.
It proposes an opt-out process for registrars that believe these requirements would put them in violation of local law.
But registrars from outside the EU say this would create a two-tier RAA, which they find unacceptable.
With apparently no easy compromise in sight the RAA negotiations, originally slated to be wrapped up in the first half of this year, look set to continue for many weeks or months to come.

Council of Europe has Whois privacy concerns too

The Council of Europe has expressed concern about the privacy ramifications of ICANN’s proposed changes to Whois requirements in the Registrar Accreditation Agreement.
In a letter this week (pdf), the Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to Personal Data (T-PD) said:

The Bureau of the T-PD took note of the position of the Article 29 Data Protection Working Parking in its comments of 26 September 2012 on the data protection impact of the revision of these arrangements concerning accuracy and data retention of the WHOIS data and fully shares the concern raised.
The Bureau of the T-PD is convinced of the importance of ensuring that appropriate consideration be given in the ICANN context to the relevant European and international privacy standards

The letter was sent in response to outreach from ICANN’s Non-Commercial Users Constituency.
The Article 29 letter referenced said that EU registrars risked breaking the law if they implemented ICANN’s proposed data retention requirements.
Earlier today, we reported on ICANN’s response, which proposes an opt-out for registrars based in the EU, but we noted that registrars elsewhere are unlikely to dig a two-tier RAA.

ICANN says EU registrars could be exempt from stringent new Whois rules

Registrars based in the European Union could be let off the hook when it comes to the Whois verification requirements currently under discussion at ICANN.
That’s according to ICANN CEO Fadi Chehade, who this week responded to privacy concerns expressed by the Article 29 Working Party, a EU-based quasi-governmental privacy watchdog.
The Working Party said last month that if ICANN forced EU registrars to re-verify customer data and store it for longer than necessary, they would risk breaking EU privacy law.
Those are two of the many amendments to the standard Registrar Accreditation Agreement that ICANN — at the request of governments and law enforcement — is currently pushing for.
In reply, Chehade noted that ICANN currently plans to give registrars an opt-out:

ICANN proposes to adapt the current ICANN Procedures for Handling Whois Conflicts with Privacy Law, to enable registrars to seek an exempton from these new RAA WHOIS and data protection obligations in the even that the obligations would cause registrars to violate their local laws and regulations.

He also said that the Governmental Advisory Committee has “endorsed” the provisions at question, and encouraged the Working Party to work via the GAC to have its views heard.
I understand that registrars based in the US and elsewhere would not respond favorably to what would essentially amount to a two-tier RAA.
Some of the RAA changes would have cost implications, so there’s an argument that to exempt some registrars and not others would create an un-level competitive playing field.
The Article 29 Working Party is an advisory body, independent of the European Union, comprising one representative from the data privacy watchdogs in each EU state.
Some GAC representatives said during the ICANN meeting in Prague this June that they had already factored privacy concerns into their support for the RAA talks.
It’s going to interesting to see how both registrars and the GAC react to the Article 29 developments at the Toronto meeting, which begins this weekend.

European privacy watchdog says ICANN’s Whois demands are “unlawful”

European Union privacy officials have told ICANN that it risks forcing registrars to break the law by placing “excessive” demands on Whois accuracy.
In a letter to ICANN yesterday, the Article 29 Working Party said that two key areas in the proposed next version of the Registrar Accreditation Agreement are problematic.
It’s bothered by ICANN’s attempt to make registrars retain data about their customers for up to two years after registration, and by the idea that registrars should re-verify contact data every year.
These were among the requests made by law enforcement, backed up by the Governmental Advisory Committee, that ICANN has been trying to negotiate into the RAA for almost a year.
The letter (pdf) reads:

The Working Party finds the proposed new requirement to re-verify both the telephone number and the e-mail address and publish these contact details in the publicly accessible WHOIS database excessive and therefore unlawful. Because ICANN is not addressing the root of the problem, the proposed solution is a disproportionate infringement of the right to protection of personal data.

The “root cause” points to a much deeper concern the Working Party has.
Whois was designed to help people find technical and operational contacts for domain names, it argues. Just because it has other uses — such as tracking down bad guys — that doesn’t excuse infringing on privacy.

The problem of inaccurate contact details in the WHOIS database cannot be solved without addressing the root of the problem: the unlimited public accessibility of private contact details in the WHOIS database.

It’s good news for registrars that were worried about the cost implications of implementing a new, more stringent RAA.
But it’s possible that ICANN will impose the new requirements anyway, giving European registrars an opt-out in order to comply with local laws.
The letter is potentially embarrassing for the GAC, which seemed to take offense at the Prague meeting this June when it was suggested that law enforcement’s recommendations were not being balanced with the views of privacy watchdogs.
During a June 26 session between the GAC and the ICANN board, Australia’s GAC rep said:

I don’t come here as an advocate for law enforcement only. I come here with an Australian government position, and the Australian government has privacy laws. So you can be sure that from a GAC point of view or certainly from my point of view that in my positions, those two issues have been balanced.

That view was echoed during the same session by the European Commission and the US and came across generally like a common GAC position.
The Article 29 Working Party is an advisory body set up by the EU in 1995. It’s independent of the Commission, but it comprises one representative from the data privacy watchdogs in each EU state.

Identity checks coming to Whois

Pretty soon, if you want to register a domain name in a gTLD you’ll have to verify your email address and/or phone number or risk having your domain turned off.
That’s the latest to come out of talks between registrars, ICANN, governments and law enforcement agencies, which met last week in Washington DC to thrash out a new Registrar Accreditation Agreement.
While a new draft RAA has not yet been published, ICANN has reported some significant breakthroughs since the Prague meeting in June.
Notably, the registrars have agreed for the first time to do some minimal registrant identity checks — phone number and/or email address — at the point of registration.
Verification of mailing addresses and other data points — feared by registrars for massively adding to the cost of registrations — appears to be no longer under discussion.
The registrars have also managed to win another concession: newly registered domain names will be able to go live before identities have been verified, rather than only after.
The sticking point is in the “and/or”. Registrars think they should be able to choose which check to carry out, while ICANN and law enforcement negotiators think they should do both.
According to a memo released for discussion by ICANN last night:

It is our current understanding that law enforcement representatives are willing to accept post-­‐resolution verification of registrant Whois data, with a requirement to suspend the registration if verification is not successful within a specified time period. However, law enforcement recommends that if registrant Whois data is verified after the domain name resolves (as opposed to before), two points of data (a phone number and an email address) should be verified.

Among the other big changes is an agreement by registrars to an ICANN-run Whois privacy service accreditation system. Work is already underway on an accreditation framework.
After it launches, registrars will only be able to accept private registrations made via accredited privacy and proxy services.
Registrars have also agreed to some of law enforcement’s data retention demands, which has been a bone of contention due to worries about varying national privacy laws.
Under the new RAA, they would keep some registrant transaction data for six months after a domain is registered and other data for two years. It’s not yet clear which data falls into which category.
These and other issues outlined in ICANN’s latest update are expected to be talking points in Toronto next month.
It looks like a lot of progress has been made since Prague — no doubt helped by the fact that law enforcement has actually been at the table — and I’d be surprised if we don’t see a draft RAA by Beijing next April.
How long it takes to be adopted ICANN’s hundreds of accredited registrars is another matter.

Tiny Russian registrar gets canned

ICANN is to terminate a Russian registrar’s accreditation.
Name For Name Inc, which was given a breach notice last month, is being shut down for basically failing to act as a registrar.
Verisign had already cut off its .com/.net registrar contract and the company was not managing names, providing Whois, or doing any of the other things registrars are supposed to.
Under normal circumstances, a termination sees a mass transfer of all the domains under management to a nominated registrar, but in Name For Name’s case I can’t see that happening.
The company only had five gTLD domain names under management, according to the latest count.
Its accreditation will be terminated September 6.
ICANN also this week issued a breach notice to Visesh Infotecnics (Signdomains.com), apparently as the result of a badly handled domain name hijacking.