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Euro-Whois advice still as clear as mud

Kevin Murphy, July 6, 2018, Domain Policy

European privacy chiefs have again weighed in to the ongoing debate about GDPR and Whois, offering another thin batch of vague advice to ICANN.

The European Data Protection Board, in its latest missive (pdf), fails to provide much of the granular “clarity” ICANN has been looking for, in my view.

It does offer a few pieces of specific guidance, but it seems to me that the general gist of the letter from EDPB chair Andrea Jelinek to ICANN CEO Goran Marby is basically: “You’re on your own buddy.”

If the question ICANN asked was “How can we comply with GDPR?” the answer, again, appears to be generally: “By complying with GDPR.”

To make matters worse, Jelinek signs off with a note implying that the EDPB now thinks that it has given ICANN all the advice it needs to run off and create a GDPR-compliant accreditation system for legitimate access to private Whois data.

The EDPB is the body that replaced the Article 29 Working Party after GDPR came into effect in May. It’s made up of the data protection authorities of all the EU member states.

On the accreditation discussion — which aims to give the likes of trademark owners and security researchers access to Whois data — the clearest piece of advice in the letter is arguably:

the personal data processed in the context of WHOIS can be made available to third parties who have a legitimate interest in having access to the data, provided that appropriate safeguards are in place to ensure that the disclosure is proportionate and limited to that which is necessary and the other requirements of GDPR are met, including the provision of clear information to data subjects.

That’s a fairly straightforward statement that ICANN is fine to go ahead with the creation of an accreditation model for third parties, just as long as it’s quite tightly regulated.

But like so much of its advice, it contains an unhelpful nested reference to GDPR compliance.

The letter goes on to say that logging Whois queries should be part of these controls, but that care should be taken not to tip off registrants being investigated by law enforcement.

But it makes no effort to answer Marby’s questions (pdf) about who these legit third-parties might be and how ICANN might go about identifying them, which is probably the most important outstanding issue right now.

Jelinek also addresses ICANN’s lawsuit against Tucows’ German subsidiary EPAG, and I have to disagree with interpretations of its position published elsewhere.

The Register’s Kieren McCarthy, my Chuckle Brother from another Chuckle Mother, reckons the EDPB has torpedoed the lawsuit by “stating clearly that it cannot force people to provide additional ‘admin’ and ‘technical’ contacts for a given domain name”.

Under my reading, what it actually states is that registrants should be able to either use their own contact data, or anonymized contact information identifying a third party, in these records.

The EDPB clearly anticipates that admin and technical contacts can continue to exist, as long as they contain non-personal contact information such as “admin@example.com”, rather than “kevin@example.com”.

That’s considerably more in line with ICANN’s position than that of Tucows, which wants to stop collecting that data altogether.

One area where EDPB does in fact shoot down ICANN’s new Whois policy is when it comes to data retention.

The current ICANN contracts make registrars retain data for two years, but the EDPB notes that ICANN does not explain why or where that number comes from (I hear it was “pulled out of somebody’s ass”).

The EDPB says that ICANN needs to “re-evaluate the proposed data retention period of two years and to explicitly justify and document why it is necessary”.

Finally, the EDPB weighs in on the issue of Whois records for “legal persons” (as opposed to “natural persons”). It turns out their Whois records are not immune to GDPR either.

If a company lists John Smith and john.smith@example.com in its Whois records, that’s personal data on Mr Smith and therefore falls under GDPR, the letter says.

That should provide a strong incentive for registries and registrars to stop publishing potentially personal fields, if they’re still doing so.

How ICANN thinks YOU could get full Whois access

Kevin Murphy, June 20, 2018, Domain Policy

With blanket public Whois access now firmly a thing of the past due to GDPR, ICANN has set the ball rolling on an accreditation system that would reopen the data doors to certain select parties.

The org yesterday published a high-level framework document for a “Unified Access Model” that could give Whois access to approved users such as police, lawyers, and even common registrants.

It contains many elements that are sure to be controversial, such as paying fees for Whois access, the right of governments to decide who gets approved, and ICANN’s right to see every single Whois query carried out under the program.

It’s basically ICANN’s attempt to frame the conversation about Whois access, outlining what it expects from community members such as registries and registrars, governments and others.

It outlines a future in which multiple “Authenticating Bodies” would hand out credentials (either directly or via referral to a central authority) to parties they deem eligible for full Whois access.

These Authenticating Bodies could include entities such as WIPO or the Trademark Clearinghouse for trademark lawyers and Interpol or Europol for law enforcement agencies.

Once suitably credentialed, Whois users would either get unexpurgated Whois access or access to only fields appropriate to their stated purpose. That’s one of many questions still open for discussion.

There could be fees levied at various stages of the process, but ICANN says there should be a study of the financial implications of the model before a decision is made.

Whois users would have to agree to a code of conduct specific to their role (cop, lawyer, registrant, etc) that would limit how they could use the data they acquire.

Additionally, registrars and registries would have to log every single Whois query and hand those logs over to ICANN for compliance and audit purposes. ICANN said:

based on initial discussions with members of the Article 29 Working Party, ICANN proposes that registry operators and registrars would be required to maintain audit logs of domain name queries for non-public WHOIS data, unless logging a particular entry is contrary to a relevant court order. The logs would be available to ICANN org for audit/compliance purposes, relevant data protection authorities, the registrant, or pursuant to a court order.

On the higher-level question of who should be given the keys to the new gates Whois — it’s calling them “Eligible User Groups” — ICANN wants to outsource the difficult decisions to either governments or, as a backstop, the ICANN community.

The proposal says: “Eligible User Groups might include intellectual property rights holders, law enforcement authorities, operational security researchers, and individual registrants.”

It wants the European Economic Area members of its Governmental Advisory Committee, and then the GAC as a whole, to “identify or facilitate identification of broad categories” of eligible groups.

ICANN’s next public meeting, ICANN 62, kicks off in Panama at the weekend, so the GAC’s next formal communique, which could address this issue, is about a week away.

ICANN also wants the GAC to help it identify potential Authenticating Bodies that would hand out credentials.

But the GAC, in its most recent communique, has already declined such a role, saying in March that it “does not envision an operational role in designing and implementing the proposed accreditation programs”.

If it sticks with that position, ICANN says it will turn to the community to have this difficult conversation.

It notes specifically the informal working group that is currently developing a “community” Accreditation & Access Model For Non-Public WHOIS Data.

This group is fairly controversial as it is perceived by some, fairly I think, as being dominated by intellectual property interests.

The group’s draft model is already in version 1.6 (pdf), and at 47 pages is much more detailed than ICANN’s proposal, but its low-traffic mailing list has almost no contracted parties on board and the IP guys are very decidedly holding the pen.

There’s also a separate draft, the Palage Differentiated Registrant Data Access Model (or “Philly Special”) (Word doc), written by consultant Michael Palage, which has received even less public discussion.

ICANN’s proposal alludes to these drafts, but it does not formally endorse either as some had feared. It does, however, provide a table (pdf) comparing its own model to the other two.

What do not get a mention are the access models already being implemented by individual registrars.

Notably, Tucows is ready to launch TieredAccess.com, a portal for would-be Whois users to obtain credentials to view Tucows-managed Whois records.

This system grants varying levels of access to “law enforcement, commercial litigation interests, and security researchers”, with law enforcement given the highest level of access, Tucows explained in a blog post yesterday.

That policy is based on the GDPR principle of “data minimization”, which is the key reason it’s currently embroiled in an ICANN lawsuit (unrelated to accreditation) in Germany.

Anyway, now that ICANN has published its own starting point proposal, it is now expected that the community will start to discuss the draft in a more formal ICANN setting. There are several sessions devoted to GDPR and Whois in Panama.

ICANN also expects to take the proposal to the European Data Protection Board, the EU committee of data protection authorities that replaced the Article 29 Working Party when GDPR kicked in last month.

However, in order for any of this to become binding on registries and registrars it will have to be baked into their contracts, which will mean it going through the regular ICANN policy development process, and it’s still not clear how much enthusiasm there is for that step happening soon.

In GDPR case, ICANN ready to fight Tucows to the bitter end

Kevin Murphy, June 14, 2018, Domain Policy

ICANN has appealed its recent court defeat as it attempts to force a Tucows subsidiary to carry on collecting full Whois data from customers.

The org said yesterday that it is taking its lawsuit against Germany-based EPAG to a higher court and has asked it to bounce the case up to the European Court of Justice, as the first test case of the new General Data Protection Regulation.

In its appeal, an English translation (pdf) of which has been published, ICANN argues that the Higher Regional Court of Cologne must provide an interpretation of GDPR in order to rule on its request for an injunction.

And if it does, ICANN says, then it is obliged by the GDPR itself to refer that question to the ECJ, Europe’s highest judicial authority.

The case concerns Tucows’ refusal to carry on collecting contact information about the administrative and technical contacts for each domain name it sells, which it is contractually obliged to do under ICANN’s Whois policy.

These are the Admin-C and Tech-C fields that complement the registrant’s own contact information, which Tucows is of course still collecting.

Tucows says that these extra fields are unnecessary, and that GDPR demands it minimize the amount of data it collects to only that which it strictly needs to execute the registration contact.

It also argues that, if the Admin-C and Tech-C are third parties, it has no business collecting any data on them at all.

According to Tucows legal filings, more than half of its 10 million domains have identical data for all three contacts, and in more than three quarters of cases the registrant and Admin-C are identical.

In its appeal, ICANN argues that the data is “crucial for the objectives of a secure domain name system, including but not limited to the legitimate purposes of consumer protection,
investigation of cybercrime, DNS abuse and intellectual property protection and law enforcement needs”.

ICANN uses Tucows’ own numbers against it, pointing out that if Tucow has 7.5 million domains with shared registrant and Admin-C data, it therefore has 2.5 million domains where the Admin-C is a different person or entity, proving the utility of these records.

It says that registrars must continue to collect the disputed data, at the very least if it has secured consent from the third parties named.

ICANN says that nothing in the Whois policy requires personal data to be collected on “natural persons” — Admin-C and Tech-C could quite easily be legal persons — therefore there is no direct clash with GDPR, which only covers natural persons.

Its appeal, in translation, reads: “the GDPR is irrelevant if no data about natural persons are collected. In this respect, the Defendant is contractually obliged to collect such data, and failure to do so violates its contract with the Applicant.”

It goes on to argue that even if the registrant chooses to provide natural-person data, that’s still perfectly fine as a “legitimate purpose” under GDPR.

ICANN was handed a blow last month after a Bonn-based court refused to give it an injunction obliging EPAG (and, by inference, all registrars) to continue collecting Admin-C and Tech-C.

The lower court had said that registrants would be able to continue to voluntarily provide Admin-C and Tech-C, but ICANN’s appeal points out that this is not true as EPAG is no longer requesting or collecting this data.

In ICANN’s estimation, the lower court declined to comment on the GDPR implications of its decision.

It says the appeals court, referred to in translation as the “Senate”, cannot avoid interpreting GDPR if it has any hope of ruling on the injunction request.

Given the lack of GDPR case law — the regulation has only been in effect for a few weeks — ICANN reckons the German court is obliged by GDPR itself to kick the can up to the ECJ.

It says: “If the Senate is therefore convinced that the outcome of this procedure depends on the interpretation of certain provisions of the GDPR, the Senate must refer these possible questions to the ECJ for a preliminary ruling”.

It adds that should a referral happen it should happen under the ECJ’s “expedited” procedures.

An ECJ ruling has been in ICANN’s sights for some time; late last year CEO Goran Marby was pointing out that a decision from the EU’s top court would probably be the only way full legal clarity on GDPR’s intersection with Whois could be obtained.

It should be pointed out of course that this case is limited to the data collection issue.

The far, far trickier issue of when this data should be released to people who believe they have a legitimate purpose to see it — think: trademark guys — isn’t even up for discussion in the courts.

It will be, of course. Give it time.

All of ICANN’s legal filings, in the original German and unofficial translation, can be found here.

Court denies ICANN’s GDPR injunction against Tucows

Kevin Murphy, May 31, 2018, Domain Policy

A German court has refused ICANN’s request for a GDPR-related injunction against Tucows’ local subsidiary EPAG, throwing a key prong of ICANN’s new Whois policy into chaos.

EPAG now appears to be free to stop collecting contact information for each domain’s administrative and technical contacts — the standard Admin-C and Tech-C fields.

The ruling may even leave the door open for registrars to delete this data from their existing Whois databases, a huge blow to ICANN’s Whois compliance strategy.

According to an ICANN-provided English translation of the ruling (pdf), the Bonn judges (whose names are redacted — another win for GDPR?) decided that the Admin-C and Tech-C records are unnecessary, because they can be (and usually are) the same person as the registrant.

The judges said that if the additional contact names were needed, it would have historically been a condition of registration that three separate people’s data was required.

They wrote that this “is proof that any data beyond the domain holder — different from him — was not previously necessary”.

“Against the background of the principle of data minimization, the Chamber is unable to see why further data sets are needed in addition to the main person responsible,” they wrote.

Data minimization is a core principle of GDPR, the General Data Protection Regulation, which came into force in the EU less than a week ago. Tucows and ICANN have different interpretations on how it should be implemented.

The judges said that the registrant’s contact information should be sufficient for any criminal or security-related investigations, which had been one of ICANN’s key claims.

They also said that ICANN’s attempt to compare Whois to public trademark databases was irrelevant, as no international treaties govern Whois.

If the ruling stands, it means registries and registrar in at least Germany could no longer have to collect Admin-C and Tech-C contacts.

Tucows had also planned to delete this data for its existing EPAG registrations, but had put its plan on hold ahead of the judge’s ruling.

The ruling also gives added weight to the part of ICANN’s registry and registrar agreements that require contracted parties to abide by local laws.

That’s at the expense of the new Temporary Policy governing Whois introduced two weeks ago, which still requires Admin-C and Tech-C data collection.

There was no word in ICANN’s statement on the ruling last night as to the possibility of appealing.

But the org seized on the fact that the ruling does not directly state that EPAG would be breaching GDPR rules by collecting the data. General counsel John Jeffrey is quoted as saying:

While ICANN appreciates the prompt attention the Court paid to this matter, the Court’s ruling today did not provide the clarity that ICANN was seeking when it initiated the injunction proceedings. ICANN is continuing to pursue the ongoing discussions with the European Commission, and WP29 [the Article 29 Working Party], to gain further clarification of the GDPR as it relates to the integrity of WHOIS services.

Tucows has yet to issue a statement on the decision.

It may not be the last time ICANN resorts to the courts in order to seek clarity on matters related to GDPR and its new Temporary Policy.

Million-euro Tucows GDPR lawsuit may not be ICANN’s last

Kevin Murphy, May 29, 2018, Domain Policy

ICANN has filed a lawsuit against a Tucows subsidiary in Germany in an effort to resolve a disagreement about how new European privacy law should be interpreted, and according to ICANN’s top lawyer it may not be the last.

The organization said late Friday that it is taking local registrar EPAG to court in Bonn, asking that the registrar be forced to continue collecting administrative and technical contact information for its Whois database.

According to an English translation of the motion (pdf), and to conversations DI had with ICANN general counsel John Jeffrey and Global Domains Division president Akram Atallah over the weekend, ICANN also wants an injunction preventing Tucows from deleting these fields from current Whois records.

At its core is a disagreement about how the new General Data Protection Regulation should be interpreted.

Tucows plans to continue collecting the registrant’s personal information, but it sees no reason why it should also collect the Admin-C and Tech-C data.

Policy director Graeme Bunton argues that in the vast majority of cases the three records are identical, and in the cases they are not, the registrar has no direct contractual relationship with the named individuals and therefore no business storing their data.

ICANN counters that Admin-C and Tech-C are vital when domain owners need to be contacted about issues such as transfers or cyber-attacks and that the public interest demands such records are kept.

Its new Temporary Policy — which is now a binding contractual commitment on all registries and registrars — requires all this data to be collected, but Tucows feels complying with the policy would force it to break European law.

“Strategically, we wanted to make sure we don’t let the Whois and the pubic interest get harmed in a way that can’t be repaired,” Atallah said.

“The injunction is to actually stop any registrar from not collecting all the data and therefore providing the opportunity for the multistakeholder model to work and come up with a long-term plan for Whois,” he said. “”We don’t want to have a gap.”

Jeffrey said that the suit was also necessary because ICANN has not received sufficient GDPR guidance from data protection authorities in the EU.

EPAG is not the only registrar planning to make the controversial changes to data collection. There are at least two others, at least one of which is based in Germany, according to Jeffrey and Atallah.

The German ccTLD registry, DENIC, is not under ICANN contract but has also said it will no longer collect Admin-C and Tech-C data.

They may have all taken their lead from the playbook (pdf) of German industry group eco, which has been telling ICANN since at least January that admin and tech contacts should no longer be collected under GDPR.

That said, Tucows chief Elliot Noss is a vocal privacy advocate, so I’m not sure how much leading was required. Tucows was also a co-developer (pdf) of the eco model.

The injunction application was filed the same day GDPR came into effect, after eleventh-hour talks between ICANN legal and Tucows leadership including chief legal officer Bret Fausett hit an impasse.

Tucows has agreed to freeze its plan to delete its existing Admin-C and Tech-C stored data, however.

The suit has a nominal million-euro value attached, but I’m convinced ICANN (despite its budget crunch) is not interested in the money here.

It’s my sense that this may not be the last time we see ICANN sue in order to bring clarity to GDPR.

Recently, Jeffrey said that ICANN would not tolerate contracted parties refusing to collect full Whois data, and also that it would not tolerate it when they decline to hand the data over to parties with legitimate interests.

The German lawsuit does not address this second category of non-compliance.

But it seems almost certain to me that intellectual lawyers are just days or weeks away from starting to file compliance tickets with ICANN when they are refused access to this data, which could lead to additional litigation.

“Whether it would result in a lawsuit is yet to be determined,” Jeffrey told DI yesterday. “The normal course would be a compliance action. If people aren’t able to gain access to information they believe that they have a legitimate right to access they will file compliance complaints. Those compliance complaints will be evaluated.”

“If it’s a systematic decision not to provide that access, that would violate the [Temporary Policy],” he said. “If they indicated it was because of their interpretation of the law, then it could result in us asking questions of the DPAs or going to court if that’s the only action available.”

The injunction application is a “one-sided filing”, which Jeffrey tells me is a feature of German law that means the court could issue a ruling without requiring EPAG/Tucows to appear in court or even formally respond.

The dispute therefore could be resolved rather quickly — this week even — by the court of first instance, Jeffrey said, or it could be bounced up to the European Court of Justice.

Given how new GDPR is, and considering the wider implications, the latter option seems like a real possibility.