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Registrars given six months to deploy Whois killer

Kevin Murphy, March 1, 2019, Domain Policy

ICANN has started the clock ticking on the mandatory industry-wide deployment of RDAP.

gTLD registries and registrars have until August 26 this year to roll out RDAP services, which will one day replace the age-old Whois spec, ICANN said this week.

Registration Data Access Protocol fulfills the same function as Whois, but it’s got better support for internationalization and, importantly given imminent work on Whois privacy, tiered access to data.

ICANN’s RDAP profile was created in conjunction with contracted parties and public comments. The registries and registrars knew it was coming and told ICANN this week that they’re happy for the 180-day implementation deadline to come into effect.

The profile basically specs out what registrars and registries have to show in their responses to Whois (or RDAP, if you’re being pedantic) queries.

It’s based on the current Temporary Specification for Whois, and will presumably have to be updated around May this year, when it is expected that the Temp Spec will be replaced by the spec created by the Whois EPDP.

Crunch Whois privacy talks kick off

Kevin Murphy, January 16, 2019, Domain Policy

ICANN volunteers are meeting this week to attempt to finalize their recommendations on the future of Whois privacy.

Most members of the Expedited Policy Development Process working group have gathered in Toronto for three days of talks on what will likely become, in May this year, new contractually binding ICANN policy.

Discussions are kicking off pretty much at the same time this article is published and will last until Friday afternoon local time.

The EPDP group is due to publish its final report by February 1, leaving enough time for GNSO consideration, public comments, and an ICANN board of directors vote.

Its initial report, which recommended some big changes to Whois output, was published in November. Public comments on this report will lead to largely modest changes to the policy this week.

The timing is tight because Whois policy is currently governed by a one-year Temporary Specification, created by the ICANN board, which expires May 25.

The bulk of the work today will focus on formalizing the “purposes” of Whois data, something that is needed if ICANN policy is to be compliant with the EU General Data Protection Regulation.

The more controversial stuff, where consensus will be extraordinarily difficult to find, comes tomorrow, when the group discusses policies relating to privileged access to private Whois data.

This is the area where intellectual property and security interests, which want a program that enables them to get access to private data, have been clashing with non-commercial stakeholders, which accuse their opponents of advocating “surveillance”.

It’s not expected that a system of standardized, unified access will be created this week or by February 1. Rather, talks will focus on language committing ICANN to work on (or not) such a system in the near future.

Currently, there’s not even a consensus on what the definition of “consensus” is. It could be slow going.

Gluttons for punishment Observers can tune in to the view/listen-only Adobe Connect room for the meetings here.

First chance to have your say on the future of Whois

Kevin Murphy, November 23, 2018, Domain Policy

RIP: the Whois Admin.

Standard Whois output is set to get slimmed down further under newly published policy proposals.

The community working group looking at post-GDPR Whois has decided that the Admin Contact is no longer necessary, so it’s likely to get scrapped next year.

This is among several recommendations of the Expedited Policy Development Process working group on Whois, which published its initial report for public comment late Wednesday.

As expected, the report stops short of addressing the key question of how third-parties such as intellectual property interests, domain investors, security researchers and the media could get streamlined access to private Whois data.

Indeed, despite over 5,000 person-hours of teleconferences and face-to-face meetings and about 1,000 mailing list messages since work began in early August, the EPDP’s 50 members have yet to reach consensus on many areas of debate.

What they have reached is “tentative agreement” on 22 recommendations on how to bring current ICANN Whois policy into line with EU privacy law, the General Data Protection Regulation.

The work is designed to replace the current Temporary Specification, a Band-Aid imposed by the ICANN board of directors, which is due to expire next May.

The EPDP initial report proposes a few significant changes to what data is collected and publicly displayed by the Whois system.

The most notable change is the complete elimination of the Admin Contact fields.

Currently, Whois contains contact information for the registrant, admin contact and technical contact. It’s often the same data replicated across all three records, and under the Temp Spec the large majority of the data is redacted.

Under the EPDP’s proposal, the Admin Contact is superfluous and should be abandoned altogether. Not only would it not be displayed, but registrars would not even collect the data.

The Tech Contact is also getting a haircut. Registrars would now only be able to collect name, phone and email address, and it would be optional for the registrant whether to provide this data at all. In any event, all three fields would be redacted from public Whois output.

For the registrant, all contact information except state/province and country would be redacted.

There’s no agreement yet on whether the optional “organization” field would be redacted, but the group has agreed that registrars should provide better guidance to registrants about whether they need to provide that data.

While data on legal persons such as companies is not protected by GDPR, some fear that natural person registrants may just naively type their own name into that box when registering a name, inadvertently revealing their identities to the public.

Those providing Whois output would be obliged, as they are under the Temp Spec, to publish an anonymized email address or web-based contact form to allow users to contact registrants without personal information being disclosed.

That German lawsuit

The recommendation to slash what data is collected could have an impact on ICANN’s lawsuit against Tucows’ German subsidiary, EPAG.

ICANN is suing EPAG after the registrar decided that collecting admin and tech contact info was not compliant with GPDR. It’s been looking, unsuccessfully, for a ruling forcing the company to carry on collecting this data.

Tucows is of the view that if the admin and tech contacts are third parties to the registration agreement, it has no right to collect data about them under the GDPR.

If ICANN’s own community policy development process is siding with Tucows, this could guide ICANN’s future legal strategy, but not, it appears, until it becomes firm consensus policy.

I asked ICANN general counsel John Jeffrey about whether the EPDP’s work could affect the lawsuit during an interview October 5, shortly after it became clear that the admin/tech contact days might be numbered.

“Maybe,” he said. “If it becomes part of the policy we’ll have to assess that. Until there’s a new policy though, what we’re working with is the Temp Spec. The Temp Spec we believe is enforceable, we believe have the legal support for that, and we’ll continue down that path.”

(It might be worth noting that Thomas Rickert, whose law firm represents EPAG in this case, is on the EPDP working group in his capacity of head of domains for German trade group eco. He is, of course, just one of the 31 EPDP members developing these recommendations at any given time.)

IP wheel-spinning

The main reason it’s taken the EPDP so long to reach the initial report stage — the report was originally due during the ICANN 63 Barcelona meeting a month ago — has been the incessant bickering between those advocating for, and opposing, the rights of intellectual property interests to access private Whois data.

EPDP members from the IP Constituency and Business Constituency have been attempting to future-proof the work by getting as many references to IP issues inserted into the recommendations as they can, before the group has turned its attention to addressing them specifically.

But they’ve been opposed every step of the way by the Non-Commercial Stakeholders Group, which is concerned the IP lobby is trying to policy its way around GDPR as it relates to Whois.

Many hours have been consumed by these often-heated debates.

My feeling is that the NCSG has been generally winning, but probably mainly because the working group’s charter forbade discussion about access until other issues had been addressed.

As it stands today, the initial report contains this language in Recommendation #2:

Per the EPDP Team Charter, the EPDP Team is committed to considering a system for Standardized Access to non-public Registration Data once the gating questions in the charter have been answered. This will include addressing questions such as:

• What are the legitimate purposes for third parties to access registration data?

• What are the eligibility criteria for access to non-public Registration data?

• Do those parties/groups consist of different types of third-party requestors?

• What data elements should each user/party have access to?

In this context, amongst others, disclosure in the course of intellectual property infringement and DNS abuse cases will be considered

This is basically a placeholder to assure the IP crowd that their wishes are still on the table for future debate — which I don’t think was ever in any doubt — but even this basic recommendation took hours to agree to.

The EPDP’s final report is due February 1, so it has just 70 days to discuss this hypothetical “Standardized Access” model. That’s assuming it started talks today, which it hasn’t.

It’s just nine weeks if we assume not a lot is going to happen over the Christmas/New Year week (most of the working group come from countries that celebrate these holidays).

For context, it’s taken the working group about 115 days just to get to the position it is in today.

Even if Standardized Access was the only issue being discussed — and it’s not, the group is also simultaneously going to be considering the public comment on its initial report, for starters — this is an absurdly aggressive deadline.

I feel fairly confident in predicting that, come February 1, there will be no agreement on a Standardized Access framework, at least not one that would be close to implementable.

Have your say

All 22 recommendations, along with a long list of questions, have now been put out for public comment.

The working group is keen to point out that all comments should provide rationales, and consider whether what they’re asking for would be GDPR-compliant, so comments along the lines of “Waaah! Whois should be open!” will likely be rapidly filed to the recycle bin.

It’s a big ask, considering that most people have just a slim grasp of what GDPR compliance actually means.

Complicating matters, ICANN is testing out a new way to process public comments this time around.

Instead of sending comments in by email, which has been the norm for two decades, a nine-page Google form has been created. This is intended to make it easier to link comments to specific recommendations. There’s also a Word version of the form that can be emailed.

Given the time constraints, it seems like an odd moment to be testing out new processes, but perhaps it will streamline things as hoped. We’ll see.

Registrars still not responding to private Whois requests

Kevin Murphy, October 18, 2018, Domain Policy

Registrars are still largely ignoring requests for private Whois data, according to a brand protection company working for Facebook.

AppDetex wrote to ICANN (pdf) last week to say that only 3% of some 9,000 requests it has made recently have resulted in the delivery of full Whois records.

Almost 60% of these requests were completely ignored, the company claimed, and 0.4% resulted in a request for payment.

You may recall that AppDetex back in July filed 500 Whois requests with registrars on behalf of client Facebook, with which it has a close relationship.

Then, only one registrar complied to AppDetex’s satisfaction.

Company general counsel Ben Milam now tells ICANN that more of its customers (presumably, he means not just Facebook) are using its system for automatically generating Whois requests.

He also says that these requests now contain more information, such as a contact name and number, after criticism from registrars that its demands were far too vague.

AppDetex is also no longer demanding reverse-Whois data — a list of domains owned by the same registrant, something not even possible under the old Whois system — and is limiting each of its requests to a single domain, according to Milam’s letter.

Registrars are still refusing to hand over the information, he wrote, with 11.4% of requests creating responses demanding a legal subpoena or UDRP filing.

The company reckons this behavior is in violation of ICANN’s Whois Temporary Specification.

The Temp Spec says registrars “must provide reasonable access to Personal Data in Registration Data to third parties on the basis of a legitimate interests pursued by the third party”.

The ICANN community has not yet come up with a sustainable solution for third-party access to private Whois. It’s likely to be the hottest topic at ICANN 63 in Barcelona, which kicks off this weekend.

Whois records for gTLD domains are of course, post-GDPR, redacted of all personally identifiable information, which irks big brand owners who feel they need it in order to chase cybersquatters.