Latest news of the domain name industry

Recent Posts

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.

This is how AppDetex works

Kevin Murphy, October 25, 2018, Domain Services

A small brand-protection registrar with a big friend caused quite a stir at ICANN 63 here in Barcelona this week, after accusing registrars for the second time of shirking their duties to disclose private Whois data to trademark owners.

AppDetex, which has close ties to Facebook, has sent something like 9,000 Whois requests to registrars over the last several months, then complained to ICANN last week that it only got a 3% response rate.

Registrars cried foul, saying that the company’s requests are too vague to action and sometimes seem farcical, suggesting an indiscriminate, automated system almost designed to be overly burdensome to them.

In chats with DI this week, AppDetex CEO Faisal Shah, general counsel Ben Milam and consultant Susan Kawaguchi claimed that the system is nowhere near as spammy as registrars think, then showed me a demo of their Whois Requester product that certainly seemed to support that claim.

First off, Whois Requester appears to be only partially automated.

Tucows had noted in a letter to ICANN that it had received requests related to domains including lincolnstainedglass.com and grifflnstafford.com, which contain strings that look a bit like the “Insta” trademark but are clearly not cybersquatting.

“That no human reviewed these domains was obvious, as the above examples are not isolated,” Tucows CEO Elliot Noss wrote.

“It is abundantly clear to us that the requests we received were generated by an automated system,” Blacknight CEO Michele Neylon, who said he had received similarly odd requests, wrote in his own letter.

But, according to AppDetex, these assumptions are not correct.

Only part of its service is automated, they said. Humans — either customers or AppDetex in-house “brand analysts” — were involved in sending out all the Whois requests generated via its system.

AppDetex itself does not generate the lists of domains of concern for its clients, they said. That’s done separately, using unrelated tools, by the clients themselves.

It’s possible these could be generated from zone files, watch services, abuse reports or something else. The usage of the domain, not just its similarity to the trademark in question, would also play a role.

Facebook, for example, could generate its own list of domains that contain strings matching, partially matching, or homographically similar to its trademarks, then manually input those domains into the AppDetex tool.

The product features the ability to upload lists of domains in bulk in a CSV file, but Kawaguchi told me this feature has never been used.

Once a domain has been input to main Whois Requester web form, a port 43 Whois lookup is automatically carried out in the background and the form is populated with data such as registrar name, Whois server, IANA number and abuse email address.

At this point, human intervention appears to be required to visually confirm whether the Whois result has been redacted or not. This might require also going to the registrar’s web-based Whois, as some registrars return different results over port 43 compared to their web sites.

If a redacted record is returned, users can then select the trademark at issue from a drop-down (Whois Requestor stores its’ customers trademark information) and select a “purpose” from a different drop-down.

The “purposes” could include things like “trademark investigation” or “phishing investigation”. Each generates a different piece of pre-written text to be used in the template Whois request.

Users can then choose to generate, manually approve, and send off the Whois request to the relevant registrar abuse address. The request may have a “form of authorization” attached — a legal statement that AppDetex is authorized to ask for the data on behalf of its client.

Replies from registrars are sent to an AppDetex email address and fed into a workflow tool that looks a bit like an email inbox.

As the demo I saw was on the live Whois Requester site with a dummy account, I did not get a view into what happens after the initial request has been sent.

Registrars have complained that AppDetex does not reply to their responses to these initial requests, which is a key reason they believe them frivolous.

Shah and Milam told me that over the last several months, if a registrar reply has included a request for additional information, the Whois Requester system has been updated with a new template for that registrar, and the request resent.

This, they said, may account for duplicate requests registrars have been experiencing, though two registrars I put this to dispute whether it fits with what they’ve been seeing.

The fact that human review is required before requests are sent out “just makes it worse”, they also said.

ICANN denies it’s in bed with trademark lawyers

Kevin Murphy, October 21, 2018, Domain Policy

ICANN chair Cherine Chalaby has strongly denied claims from non-commercial stakeholders that its attitude to Whois reform is “biased” in favour of “special interests” such as trademark lawyers.

In a remarkably fast reply (pdf) to a scathing October 17 letter (pdf) from the current and incoming chairs of the Non-Commercial Stakeholders Group, Chalaby dismissed several of the NCSG’s claims of bias as “not true”.

The NCSG letter paints ICANN’s efforts to bring Whois policy into line with the General Data Protection Regulation as rather an effort to allow IP owners to avoid GDPR altogether.

It even suggests that ICANN may be veering into content regulation — something it has repeatedly and specifically disavowed — by referring to how Whois may be used to combat “fake news”.

The “demonstrated intention of ICANN org has been to ensure the unrestrained and unlawful access to personal data demanded by special interest groups”, the NCSG claimed.

It believes this primarily due to ICANN’s efforts to support the idea of a “unified access model” — a way for third parties with “legitimate interests” to get access to private Whois data.

ICANN has produced a couple of high-level framework documents for such a model, and CEO Goran Marby has posted articles playing up the negative effects of an inaccessible Whois.

But Marby has since insisted that a unified access model is still very much an “if”, entirely dependent on whether the community, in the form of the Whois EPDP working group, decides there should be one.

That message was reiterated in Chalaby’s new letter to the NCSG.

The conversation on whether to adopt such a model must continue, but the outcomes of those discussions are for the community to decide. We expect that the community, using the bottom-up multistakeholder model, will take into account all stakeholders’ views and concerns.

He denied that coordinating Whois data is equivalent to content regulation, saying it falls squarely within ICANN’s mandate.

“ICANN’s mission related to ‘access to’ this data has always encompassed lawful third-party access and use, including for purposes that may not fall within ICANN’s mission,” he wrote.

The exchange of letters comes as parties on the other side of the Whois debate also lobby ICANN and its governmental advisors over the need for Whois access.

ICANN 63, Day 0 — registrars bollock DI as Whois debate kicks off

Kevin Murphy, October 21, 2018, Domain Policy

Blameless, cherubic domain industry news blogger Kevin Murphy received a bollocking from registrars over recent coverage of Whois reform yesterday, as he attended the first day of ICANN 63, here in Barcelona.

Meanwhile, the community working group tasked with designing this reform put in a 10-hour shift of face-to-face talks, attempting to craft the language that will, they hope, bring ICANN’s Whois policy into line with European privacy law.

Talks within this Expedited Policy Development Process working group have not progressed a massive amount since I last reported on the state of affairs.

They’re still talking about “purposes”. Basically, trying to write succinct statements that summarize why entities in the domain name ecosystem collect personally identifiable information from registrants.

Knowing why you’re collecting data, and explaining why to your customers, is one of the things you have to do under the General Data Protection Regulation.

Yesterday, the EPDP spent pretty much the entire day arguing over what the “purposes” of ICANN — as opposed to registries, registrars, or anyone else — are.

The group spent the first half of the day trying to agree on language explaining ICANN’s role in coordinating DNS security, and how setting policies concerning third-party access to private Whois data might play a role in that.

The main sticking point was the extent to which these third parties get a mention in the language.

Too little, and the Intellectual Property Constituency complains that their “legitimate interests” are being overlooked; too much, and the Non-Commercial Stakeholders Group cries that ICANN is overstepping its mission by turning itself into a vehicle for trademark enforcement.

The second half of the day was spent dealing with language explaining why collecting personal data helps to establish ownership of domains, which is apparently more complicated than it sounds.

Part of this debate was over whether registrants have “rights” — such as the right to use a domain name they paid for.

GoDaddy policy VP James Bladel spent a while arguing against this legally charged word, again favoring “benefits”, but appeared to eventually back down.

It was also debated whether relatively straightforward stuff such as activating a domain in the DNS by publishing name servers can be classed as the disclosure of personal data.

The group made progress reaching consensus on both sets of purposes, but damn if it wasn’t slow, painful progress.

The EPDP group will present its current state of play at a “High Interest Topic” session on Monday afternoon, but don’t expect to see its Initial Report this week as originally planned. That’s been delayed until next month.

While the EPDP slogs away, there’s a fair bit of back-channel lobbying of ICANN board and management going on.

All the players with a significant vested interest in the outcome are writing letters, conducting surveys, and so on, in order to persuade ICANN that it either does or does not need to create a “unified access model” that would allow some parties to carry on accessing private Whois data more or less the same way as they always have.

One such effort is the one I blogged about on Thursday, shortly before heading off to Barcelona, AppDetex’s claims that registrars have ignored or not sufficiently responded to some 9,000 automated requests for Whois data that its clients (notably Facebook) has spammed them with recently.

Registrars online and in-person gave me a bollocking over the post, which they said was one-sided and not in keeping with DI’s world-renowned record of fairness, impartiality and all-round awesomeness (I’m paraphrasing).

But, yeah, they may have a point.

It turns out the registrars still have serious beef with AppDetex’s bulk Whois requests, even with recent changes that attempt to scale back the volume of data demanded and provide more clarity about the nature of the request.

They suspect that AppDetex is simply trawling through zone files for strings that partially match a handful of Facebook’s trademarks, then spamming out thousands of data requests that fail to specify which trademarks are being infringed and how they are being infringed.

They further claim that AppDetex and its clients do not respond to registrars’ replies, suggesting that perhaps the aim of the game here is to gather data not about the owner of domains but about registrars’ alleged non-compliance with policy, thereby propping up the urgent case for a unified access mechanism.

AppDetex, in its defence, has been telling registrars on their private mailing list that it wants to carry on working with them to refine its notices.

The IP crowd and registrars are not the only ones fighting in the corridors, though.

The NCSG also last week shot off a strongly worded missive to ICANN, alleging that the organization has thrown in with the IP lobby, making a unified Whois access service look like a fait accompli, regardless of the outcome of the EPDP. ICANN has denied this.

Meanwhile, cybersecurity interests have also shot ICANN the results of a survey, saying they believe internet security is suffering in the wake of ICANN’s response to GDPR.

I’m going to get to both of these sets of correspondence in later posts, so please don’t give me a corridor bollocking for giving them short shrift here.

UPDATE: Minutes after posting this article, I obtained a letter Tucows has sent to ICANN, ripping into AppDetex’s “outrageous” campaign.

Tucows complains that it is being asked, in effect, to act as quality control for AppDetex’s work-in-progress software, and says the volume of spurious requests being generated would be enough for it ban AppDetex as a “vexatious reporter”.

AppDetex’s system apparently thinks “grifflnstafford.com” infringes on Facebook’s “Insta” trademark.

UPDATE 2: Fellow registrar Blacknight has also written to ICANN today to denounce AppDetex’s strategy, saying the “automated” requests it has been sending out are “not sincere”.

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.