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PwC wants to be your Whois gatekeeper

Kevin Murphy, June 11, 2019, Domain Services

PricewaterhouseCoopers has built a Whois access system that may help domain name companies and intellectual property interests call a truce in their ongoing battle over access to private Whois data.

Its new TieredAccess Platform will enable registries and registrars to “outsource the entire process of providing access to non-public domain registration data”.

That’s according to IP lawyer Bart Lieben, partner at the Belgian law firm ARTES, who devised the system and is working with PwC to develop it.

The offering is designed to give trademark lawyers access to the data they lust after, while also reducing costs and mitigating domain name industry liability under the General Data Protection Regulation.

TieredAccess would make PwC essentially the gatekeeper for all requests for private Whois data (at least, in the registries plugged into the platform) coming from the likes of trademark owners, security researchers, lawyers and law enforcement agencies.

At one end, these requestors would be pre-vetted by PwC, after which they’d be able to ask for unredacted Whois records using PwC as an intermediary.

They’d have to pick from one of 43 pre-written request scenarios (such as cybersquatting investigation, criminal probe or spam prevention) and assert that they will only use the data they obtain for the stated purposes.

At the other end, registries and registrars will have adopted a set of rules that specify how such requests should be responded to.

A ruleset could say that cops get more access to data than security researchers, for example, or that a criminal investigation is more important than a UDRP complaint.

PwC has created a bunch of templates, but registrars and registries would be able to adapt these policies to their own tastes.

Once the rules are put in place, and the up-front implementation work has been done to plug PwC into their Whois servers, they wouldn’t have to worry about dealing with Whois requests manually as most are today. The whole lot would be automated.

Not even PwC would have human eyes on the requests. The private data would only be stored temporarily.

One could argue that there’s the potential for abusive or non-compliant requests making it through, which may give liability-nervous companies pause.

But the requests and response metadata would be logged for audit and compliance, so abusive users could be fingered after the act.

Lieben says the whole system has been checked for GDPR compliance, assuming its prefabricated baseline scenarios and templates are adopted unadulterated.

He said that the PwC brand should give clients on both sides “peace of mind” that they’re not breaking privacy law.

If a registrar requires an affidavit before releasing data, the assertions requestors make to PwC should tick that box, he said.

Given that this is probably a harder sell to the domain name industry side of the equation, it’s perhaps not surprising that it’s the requestors that are likely to shoulder most of the cost burden of using the service.

Lieben said a pricing model has not yet been set, but that it could see fees paid by registrars subsidized by the fees paid by requestors.

There’s a chance registries could wind up paying nothing, he said.

The project has been in the works since September and is currently in the testing phase, with PwC trying to entice registries and registrars onto the platform.

Lieben said some companies have already agreed to test the service, but he could not name them yet.

The service was developed against the backdrop of ongoing community discussions within ICANN in the Expedited Policy Development Working group, which is trying to create a GDPR-compliant policy for access to private Whois records.

ICANN Org has also made it known that it is considering making itself the clearinghouse for Whois queries, to allow its contracted parties to offload some liability.

It’s quite possible that once the policies are in place, ICANN may well decide to outsource the gatekeeper function to the likes of PwC.

That appears to be what Lieben has in mind. After all, it’s what he did with the Trademark Clearinghouse almost a decade ago — building it independently with Deloitte while the new gTLD rules were still being written and then selling the service to ICANN when the time came.

The TieredAccess service is described in some detail here.

Major registries posting “fabricated” Whois data

One or more of the major gTLD registries are publishing Whois query data that may be “fabricated”, according to some of ICANN’s top security minds.

The Security and Stability Advisory Committee recently wrote to ICANN’s top brass to complain about inconsistent and possibly outright bogus reporting of Whois port 43 query volumes.

SSAC said (pdf):

it appears that the WHOIS query statistics provided to ICANN by registry operators as part of their monthly reporting obligations are generally not reliable. Some operators are using different methods to count queries, some are interpreting the registry contract differently, and some may be reporting numbers that are fabricated or otherwise not reflective of reality. Reliable reporting is essential to the ICANN community, especially to inform policy-making.

SSAC says that the inconsistency of the data makes it very difficult to make informed decisions about the future of Whois access and to determine the impact of GPDR.

While the letter does not name names, I’ve replicated some of SSAC’s research and I think I’m in a position to point fingers.

In my opinion, Google, Verisign, Afilias and Donuts appear to be the causes of the greatest concern for SSAC, but several others exhibit behavior SSAC is not happy about.

I reached out to these four registries on Wednesday and have published their responses, if I received any, below.

SSAC’s concerns relate to the monthly data dumps that gTLD registries new and old are contractually obliged to provide ICANN, which publishes the data three months later.

Some of these stats concern billable transactions such as registrations and renewals. Others are used to measure uptime obligations. Others are largely of academic interest.

One such stat is “Whois port 43 queries”, defined in gTLD contracts as “number of WHOIS (port-43) queries responded during the reporting period”.

According to SSAC, and confirmed by my look at the data, there appears to be a wide divergence in how registries and back-end registry services providers calculate this number.

The most obvious example of bogosity is that some registries are reporting identical numbers for each of their TLDs. SSAC chair Rod Rasmussen told DI:

The largest issue we saw at various registries was the reporting of the exact or near exact same number of queries for many or all of their supported TLDs, regardless of how many registered domain names are in those zones. That result is a statistical improbability so vanishingly small that it seems clear that they were reporting some sort of aggregate number for all their TLDs, either as a whole or divided amongst them.

While Rasmussen would not name the registries concerned, my research shows that the main culprit here appears to be Google.

In its December data dumps, it reported exactly 68,031,882 port 43 queries for each of its 45 gTLDs.

If these numbers are to be believed, .app with its 385,000 domains received precisely the same amount of port 43 interest as .gbiz, which has no registrations.

As SSAC points out, this is simply not plausible.

A Google spokesperson has not yet responded to DI’s request for comment.

Similarly, Afilias appears to have reported identical data for a subset of its dot-brand clients’ gTLDs, 16 of which purportedly had exactly 1,071,939 port 43 lookups in December.

Afilias has many more TLDs that did not report identical data.

An Afilias spokesperson told DI: “Afilias has submitted data to ICANN that addresses the anomaly and the update should be posted shortly.”

SSAC’s second beef is that one particular operator may have reported numbers that “were altered or synthesized”. SSAC said in its letter:

In a given month, the number of reported WHOIS queries for each of the operator’s TLDs is different. While some of the TLDs are much larger than others, the WHOIS query totals for them are close to each other. Further statistical analysis on the number of WHOIS queries per TLD revealed that an abnormal distribution. For one month of data for one of the registries, the WHOIS query counts per TLD differed from the mean by about +/- 1%, nearly linearly. This appeared to be highly unusual, especially with TLDs that have different usage patterns and domain counts. There is a chance that the numbers were altered or synthesized.

I think SSAC could be either referring here to Donuts or Verisign

Looking again at December’s data, all but one of Donuts’ gTLDs reported port 43 queries between 99.3% and 100.7% of the mean average of 458,658,327 queries.

Is it plausible that .gripe, with 1,200 registrations, is getting almost as much Whois traffic as .live, with 343,000? Seems unlikely.

Donuts has yet to provide DI with its comments on the SSAC letter. I’ll update this post and tweet the link if I receive any new information.

All of the gTLDs Verisign manages on behalf of dot-brand clients, and some of its own non-.com gTLDs, exhibit the same pattern as Donuts in terms of all queries falling within +/- 1% of the mean, which is around 431 million per month.

So, as I put to Verisign, .realtor (~40k regs) purportedly has roughly the same number of port 43 queries as .comsec (which hasn’t launched).

Verisign explained this by saying that almost all of the port 43 queries it reports come from its own systems. A spokesperson told DI:

The .realtor and .comsec query responses are almost all responses to our own monitoring tools. After explaining to SSAC how Verisign continuously monitors its systems and services (which may be active in tens or even hundreds of locations at any given time) we are confident that the accuracy of the data Verisign reports is not in question. The reporting requirement calls for all query responses to be counted and does not draw a distinction between responses to monitoring and non-monitoring queries. If ICANN would prefer that all registries distinguish between the two, then it is up to ICANN to discuss that with registry operators.

It appears from the reported numbers that Verisign polls its own Whois servers more than 160 times per second. Donuts’ numbers are even larger.

I would guess, based on the huge volumes of queries being reported by other registries, that this is common (but not universal) practice.

SSAC said that it approves of the practice of monitoring port 43 responses, but it does not think that registries should aggregate their own internal queries with those that come from real Whois consumers when reporting traffic to ICANN.

Either way, it thinks that all registries should calculate their totals in the same way, to make apples-to-apples comparisons possible.

Afilias’ spokesperson said: “Afilias agrees that everyone should report the data the same way.”

As far as ICANN goes, its standard registry contract is open to interpretation. It doesn’t really say why registries are expected to collect and supply this data, merely that they are obliged to do so.

The contracts do not specify whether registries are supposed to report these numbers to show off the load their servers are bearing, or to quantify demand for Whois services.

SSAC thinks it should be the latter.

You may be thinking that the fact that it’s taken a decade or more for anyone to notice that the data is basically useless means that it’s probably not all that important.

But SSAC thinks the poor data quality interferes with research on important policy and practical issues.

It’s rendered SSAC’s attempt to figure out whether GDPR and ICANN’s Temp Spec have had an effect on Whois queries pretty much futile, for example.

The meaningful research in question also includes work leading to the replacement of Whois with RDAP, the Registration Data Access Protocol.

Finally, there’s the looming possibility that ICANN may before long start acting as a clearinghouse for access to unredacted Whois records. If it has no idea how often Whois is actually used, that’s going to make planning its infrastructure very difficult, which in turn could lead to downtime.

Rasmussen told DI: “Our impression is that all involved want to get the numbers right, but there are inconsistent approaches to reporting between registry operators that lead to data that cannot be utilized for meaningful research.”

Governments demand Whois reopened within a year

Kevin Murphy, April 29, 2019, Domain Policy

ICANN’s government advisers wants cops, trademark owners and others to get access to private Whois data in under a year from now.

The Governmental Advisory Committee wants to see “considerable and demonstrable progress, if not completion” of the so-called “unified access model” for Whois by ICANN66 in Montreal, a meeting due to kick off November 4 this year.

The demand came in a letter (pdf) last week from GAC chair Manal Ismail to her ICANN board counterpart Cherine Chalaby.

She wrote that the GAC wants “phase 2” of the ongoing Expedited Policy Development Process on Whois not only concluded but also implemented “within 12 months or less” of now.

It’s a more specific version of the generic “hurry up” advice delivered formally in last month’s Kobe GAC communique.

It strikes me as a ludicrously ambitious deadline.

Phase 2 of the EPDP’s work involves deciding what “legitimate interests” should be able to request access to unredacted private Whois data, and how such requests should be handled.

The GAC believes “legitimate interests include civil, administrative and criminal law enforcement, cybersecurity, consumer protection and IP rights protection”.

IP interests including Facebook want to be able to vacuum up as much data as they want more or less on demand, but they face resistance from privacy advocates in the non-commercial sector (which want to make access as restrictive as possible) and to a lesser extent registries and registrars (which want something as cheap and easy as possible to implement and operate that does not open them up to legal liability).

Ismail’s letter suggests that work could be sped up by starting the implementation of stuff the EPDP group agrees to as it agrees to it, rather than waiting for its full workload to be complete.

Given the likelihood that there will be a great many dependencies between the various recommendations the group will come up with, this suggestion also comes across as ambitious.

The EPDP group is currently in a bit of a lull, following the delivery of its phase 1 report to ICANN, which is expected to approve its recommendations next month.

Since the phase 1 work finished in late February, there’s been a change of leadership of the group, and bunch of its volunteer members have been swapped out.

Volunteers have also complained about burnout, and there’s been some pressure for the pace of work — which included four to five hours of teleconferences per week for six months — to be scaled back for the second phase.

The group’s leadership has discussed 12 to 18 months as a “realistic and desirable” timeframe for it to reach its Initial Report stage on the phase 2 work.

For comparison, it published its Initial Report for phase 1 after only six stressful months on the job, and not only have its recommendations not been implemented, they’ve not even been approved by ICANN’s board of directors yet. That’s expected to happen this Friday, at the board’s retreat in Istanbul.

With this previous experience in mind, the chances of the GAC getting a unified Whois access service implemented within a year seem very remote.

Karklins beats LaHatte to chair ICANN’s Whois privacy team

Kevin Murphy, April 25, 2019, Domain Policy

Latvian diplomat and former senior WIPO member Janis Karklins has been appointed chair of the ICANN working group that will decide whether to start making private Whois records available to trademark owners.

Karklins’ appointment was approved by the GNSO Council last week. He beat a single rival applicant, New Zealand’s Chris LaHatte, the former ICANN Ombudsman.

He replaces Kurt Pritz, the former ICANN Org number two, who quit the chair after it finished its “phase one” work earlier this year.

Karklins has a varied resume, including a four-year stint as chair of ICANN’s Governmental Advisory Committee.

He’s currently Latvia’s ambassador to the United Nations in Geneva, as well as president of the Arms Trade Treaty.

Apparently fighting for Latvia’s interests at the UN and overseeing the international conventional weapons trade still gives him enough free time to now also chair the notoriously intense and tiring Expedited Policy Development Process on Whois, which has suffered significant burnout-related volunteer churn.

But it was Karklins’ one-year term as chair of the general assembly of WIPO, the World Intellectual Property Organization, that gave some GNSO Council members pause.

The EPDP is basically a big bloodless ruck between intellectual property lawyers and privacy advocates, so having a former WIPO bigwig in the neutral hot seat could be seen as a conflict.

This issue was raised by the pro-privacy Non-Commercial Stakeholders Group during GNSO Council discussions last week, who asked whether LaHatte could not also be brought on as a co-chair.

But it was pointed out that it would be difficult to find a qualified chair without some connection to some interested party, and that Karklins is replacing Pritz, who at the time worked for a new gTLD registry and could have had similar perception-of-conflict issues.

In the end, the vote to confirm Karklins was unanimous, NCSG and all.

The EPDP, having decided how to bring ICANN’s Whois policy into compliance with the General Data Protection Regulation, is now turning its attention to the far trickier issue of a “unified access model” for private Whois data.

It will basically decide who should be able to request access to this data and how such a system should be administered.

It will not be smooth sailing. If Karklins thinks international arms dealers are tricky customers, he ain’t seen nothing yet.

Trademark posse fails to block Whois privacy policy

Kevin Murphy, March 5, 2019, Domain Policy

The ICANN community’s move to enshrine Whois privacy into formal consensus policy is moving forward, despite votes to block it by intellectual property interests.

During a special meeting yesterday, the GNSO Council voted to approve a set of recommendations that would (probably) bring ICANN’s Whois policy into compliance with the General Data Protection Regulation.

But four councilors — Paul McGrady and Flip Petillion of the Intellectual Property Constituency and Marie Pattullo and Scott McCormick of the Business Constituency — voted against the compromise deal.

Their downvotes were not enough to block it from passing, however. It has now been opened for a month of public comments before being handed to the ICANN board of directors for final approval, whereupon it will become ICANN’s newest consensus policy and binding on all contracted parties.

McGrady, an lawyer with Winston Strawn, claimed that the Expedited Policy Development Process working group that came up with the recommendations failed to reach the level of consensus that it had claimed.

“The consensus call was broken,” he said, adding that the EPDP’s final report “reflects consensus where there really wasn’t any.”

The GNSO was due to vote 10 days ago, but deferred the vote at the request of the IPC and BC. McGrady said that both groups had tried to muster up support in their communities for a “yes” vote in the meantime, but “just couldn’t get there”.

Speaking for the BC from a prepared statement, Pattullo (who works for European brand protection group AIM) told the Council:

The report is a step backwards for BC members’ interests compared to the Temp Spec, especially as the legitimate purposes for collecting and processing data are insufficiently precise, and do not include consumer protection, cybercrime, DNS abuse and IP protection.

The Temp Spec is the Temporary Specification currently governing how registries and registrars collect and publish Whois data. It was created as an emergency measure by the ICANN board and is due to expire in May, where it will very probably be replaced by something based on the EPDP recommendations.

In response to the IPC/BC votes, Michele Neylon of the Registrars Constituency and Ayden Férdeline of the Non-Commercial Stakeholders Group read statements claiming that trademark interests had been given substantial concessions during the EPDP talks.

Neylon in particular had some harsh words for the holdout constituencies, accusing them of “bad faith” and pointing out that the EPDP spent thousands of hours discussing its recommendations.

“Our members would want any number of obligations this report contains to be removed, but despite the objections we voiced our support for the final product as a sign of compromise and support for the entire multistakeholder model,” he said.

“Given the objections of certain parts of the community it’s unclear how we can ask this group to carry on with the next phase of its work at the same pace,” he said. “Given the unwillingness of others to participate and negotiate in good faith, how can we ask our reps to spend hours compromising on this work when it’s clear others will simply wait until the last minute and withdraw their consent for hard-fought compromise.”

The EPDP had a hard deadline due to the imminent expiration of the Temp Spec, but that’s not true of its “phase two” work, which will explore possible ways trademark enforcers could get access to redacted private Whois data.

Unfortunately for the IP lobby, there’s a very good chance that this work is going to proceed at a much slower pace than phase one, which wrapped up in basically six months.

During yesterday’s Council call, both Neylon and NCSG rep Tatiana Tropina said that the dedication required of volunteers in phase one — four to five hours of teleconferences a week and intensive mailing list discussions — will not be sustainable over phase two.

They simply won’t be able to round up enough people with enough time to spare, they said.

Coincidentally, neither the registrars nor the non-coms have any strong desire to see a unified access solution developed any time soon, so a more leisurely pace suits them politically too.

It will be up to the EPDP working group, and whoever turns out to be its new chair, to figure out the timetable for the phase two work.