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More privacy headaches? UK to withdraw from GDPR

Kevin Murphy, August 26, 2021, Domain Policy

The UK is to craft its own privacy legislation, after Brexit enabled it to extricate itself from the EU’s General Data Protection Regulation, potentially causing headaches for domain name companies.

While it’s still in the very early pre-consultation stages, the government announced today that it wants “to make the country’s data regime even more ambitious, pro-growth and innovation-friendly, while still being underpinned by secure and trustworthy privacy standards.”

The country looks to be heading to a new privacy regime that registries and registrars doing business there will have to comply with, particular with regard to Whois services, in other words.

But it might not be too bad — the government is talking up plans to make “data adequacy” deals with third countries to enable the easy, legal transfer of private data across borders, which is always useful in the context of domain names.

While the UK is no longer in the EU, most EU laws including GDPR were grandfathered in and are still in effect.

Will you use SSAD for Whois queries?

Kevin Murphy, July 9, 2021, Domain Policy

ICANN is pinging the community for feedback on proposed Whois reforms that would change how people request access to private registrant data.

The fundamental question is: given everything you know about the proposed System for Standardized Access and Disclosure (SSAD), how likely are you to actually use it?

The SSAD idea was dreamed up by a community working group as the key component of ICANN’s response to privacy laws such as GDPR, and was then approved by the Generic Names Supporting Organization.

But it’s been criticized for not going far enough to grant Whois access to the likes of trademark lawyers, law enforcement and security researchers. Some have called it a glorified ticketing system that will cost far more than the value it provides.

Before the policy is approved by ICANN’s board, it’s going through a new procedure called the ODP, for Operational Design Phase, in which ICANN staff, in coordination with the community, attempt to figure out whether SSAD would be cost-effective, or even implementable.

The questionnaire released today will be an input to the ODP. ICANN says it “will play a critical role in assessing the feasibility and associated risks, costs, and resources required in the potential deployment of SSAD.”

There’s only eight questions, and they mostly relate to the volume of private data requests submitted currently, how often SSAD is expected to be used, and what the barriers to use would be.

ICANN said it’s asking similar questions of registries and registrars directly.

There’s a clear incentive here for the IP and security factions within ICANN to low-ball the amount of usage they reckon SSAD will get, whether that’s their true belief or not, if they want ICANN to strangle the system in its crib.

It’s perhaps noteworthy that the potential user groups the questionnaire identifies do not include domain investors nor the media, both of which have perfectly non-nefarious reasons for wanting greater access to Whois data. This is likely because these communities were not represented on the SSAD working group.

You can find the questionnaire over here. You have until July 22.

More non-rules proposed for Whois privacy

Kevin Murphy, June 4, 2021, Domain Policy

An ICANN working group has come up with some extra policy proposals for how registries and registrars handle Whois records, but they’re going to be entirely optional.

The ongoing Expedited Policy Development Process team has come up with a document answering two questions: whether registrars should differentiate between people and companies, and whether there should be a system of uniform, anonymized email addresses published in Whois records.

The answer to both questions is a firm “Maybe”.

The EPDP working group seems to have been split along the usual party lines when it comes to both, and has recommended that contracted parties should get to choose whether they adopt either practice.

Under privacy laws, chiefly GDPR, protections only extend to data on natural persons — people — and not to legal persons such as companies, non-profits and other amorphous entities.

Legally, registries and registrars are not obliged to fully redact the Whois records of domains belonging to companies, but many do anyway because it’s easier than putting systems in place to differentiate the two types of registrant.

There’s also the issue that, even if the owner of the domain is a company, the contact information may belong to a named, identifiable person who is protected by GDPR. So ICANN’s contracted parties may reduce their potential liability by redacting everything, no matter what type of entity the domain belongs to.

The EPDP’s has decided to stick to the status quo it agreed to in an earlier round of policy talks: “Registrars and Registry Operators are permitted to differentiate between registrations of legal and natural persons, but are not obligated to do so”.

Contracted parties will get the option to ask their registrants if they’re a natural person (yes/no/not saying) and capture that data, but they’ll have to redact the answer from public Whois output.

They’d have to “clearly communicate” to their customers the fact that their data will be treated differently depending on the choice they make.

On the second question, related to whether a system standardized, published, anonymized email addresses is feasible or desirable, the EPDP is also avoiding any radical changes:

The EPDP Team recognizes that it may be technically feasible to have a registrant-based email contact or a registration-based email contact. Certain stakeholders see risks and other concerns that prevent the EPDP Team from making a recommendation to require Contracted Parties to make a registrant-based or registration-based email address publicly available at this point in time.

Again, the working group is giving registries and registrars the option to implement such systems or not.

The benefit (or drawback, depending on your perspective) of giving each registrant a single anonymous email address that is published in all their Whois records is that it makes it rather easy to reverse-engineer that registrant’s entire portfolio.

If you’re a political insider running a whistle-blower blog, a bar owner who also moderates a forum for closeted gays in a repressive regime, or a domain name news blogger running a furry porn site on the side, you might not want your whole collection of domains to be easily doxxed.

But if you’re a trademark lawyer chasing cybersquatters or a security researcher tracking spammers, being able to take action against a ne’er-do-well’s entire portfolio at once could be hugely useful.

So the EPDP working group proposes to leave it up to individual registries and registrars to decide whether to implement such a system, basically telling these companies to talk to their lawyers.

The EPDP Team recommends that Contracted Parties who choose to publish a registrant- or registration-based email address in the publicly accessible RDDS should ensure appropriate safeguards for the data subject in line with relevant guidance on anonymization techniques provided by their data protection authorities and the appended legal guidance in this recommendation

An appendix to the recommendations, compiled by the law firm Bird & Bird, says there’s “a high likelihood that the publication or automated disclosure of such email addresses would be considered to be the processing of personal data”.

The EPDP recommendations are now open for public comment until July 19, and could become binding if they make it through the rest of the ICANN policy development system.

Pheenix goes AWOL, gets canned

Drop-catch registrar Pheenix has had its registrar contract terminated by ICANN after apparently going AWOL.

ICANN has been chasing the company for breaches related to Whois and access to registrant data since October 2019, but hasn’t heard a peep out of the outfit for a year.

As I noted when ICANN published its first breach notice last month, ICANN hasn’t been able to connect with Pheenix via email or phone or fax since May 2020.

Since then, it’s also discovered that the company is no longer at the mailing address it has on record.

The registrar has not added any domain names since April 2020. It seems clear it no longer has any interest in doing, or perhaps ability to do, business.

The de-accredited registrar bulk transfer process will now kick in. ICANN will select a registrar to move Pheenix’s 6,000-odd domains to.

Pheenix once specialized in drop-catching, and had over 500 ICANN-accredited registrars to its name. Almost all of those were ditched in November 2017.

ICANN threatens to seize gTLD after Whois downtime

Kevin Murphy, April 12, 2021, Domain Registries

Are we about to see our next gTLD registry implosion?

ICANN has whacked the company behind .gdn with a breach notice and a threat that it may seize the TLD, after its Whois systems allegedly suffered days of downtime.

According to ICANN, .gdn exceeded its weekly and monthly downtime limits in late March and early April, in both months triggering the threshold whereby ICANN is allowed to transition the TLD to an Emergency Back-End Registry Operator.

gTLD registries are allowed to have 864 minutes (about 14 hours) of unplanned Whois downtime per month. Downtime exceeding 24 hours per week is enough to trigger ICANN’s EBERO powers.

It appears to be the third time .gdn’s Whois has gone on the blink for longer than the permitted period — ICANN says it happened in April 2018 and August 2019 too. Those incidents were not publicized.

It seems the Russian registry, Joint Stock Company “Navigation-information systems”, managed to fix the problem on April 2, and ICANN is not invoking the EBERO transition, something it has done just a couple times before, just yet.

But it does want NIS to present it with a plan showing how it intends to avoid another spell of excessive downtime in future. It has until May 8, or ICANN may escalate.

.gdn is by most measures a bullshit TLD.

While it was originally intended to address some kind of satellite navigation niche, it eventually launched as a pure generic with the backronym “Global Domain Name” in 2016.

It managed to rack up over 300,000 registrations in the space of a year, almost all via disgraced and now-defunct registrar AlpNames, and was highlighted by SpamHaus as being one of the most spam-friendly of the new gTLDs.

After AlpNames went out of business two years ago, ICANN transferred some 350,000 .gdn names to CentralNic-owned registrar Key-Systems.

Today, Key-Systems has fewer than 300 .gdn domains. The TLD’s zone file dropped by about 290,000 domains in a single day last December.

.gdn had fewer than 11,000 domains under management at the end of 2020, 90% of which were registered through a Dubai-based registrar called Intracom Middle East FZE.

Intracom pretty much only sells .gdn domains, suggesting an affiliation with the registry.

Web searches for live sites using .gdn return not much more than what looks like porn spam.

A busted Whois looks like the least of its problems, to be honest.

IP lobby demands halt to Whois reform

Kevin Murphy, March 17, 2021, Domain Policy

Trademark interests in the ICANN community have called on the Org to freeze implementation of the latest Whois access policy proposals, saying it’s “not yet fit for purpose”.

The Intellectual Property Constituency’s president, Heather Forrest, has written (pdf) to ICANN chair Maarten Botterman to ask that the so-called SSAD system (for Standardized System for Access and Disclosure) be put on hold.

SSAD gives interested parties such as brands a standardized pathway to get access to private Whois data, which has been redacted by registries and registrars since the EU’s Generic Data Protection Regulation came into force in 2018.

But the proposed policy, approved by the GNSO Council last September, still leaves a great deal of discretion to contracted parties when it comes to disclosure requests, falling short of the IPC’s demands for a Whois that looks a lot more like the automated pre-GDPR system.

Registries and registrars argue that they have to manually verify disclosure requests, or risk liability — and huge fines — under GDPR.

The IPC has a few reasons why it reckons ICANN should slam the brakes on SSAD before implementation begins.

First, it says the recommendations sent to the GNSO Council lacked the consensus of the working group that created them.

Intellectual property, law enforcement and security interests — the likely end users of SSAD — did not agree with big, important chucks of the working group’s report. The IPC reckons eight of the 18 recommendations lacked a sufficient degree of consensus.

Second, the IPC claims that SSAD is not in the public interest. If the entities responsible for “policing the DNS” don’t think they will use SSAD due to its limitations, then why spend millions of ICANN’s money to implement it?

Third, Forrest writes that emerging legislation out of the EU — the so-called NIS2, a draft of a revised information security directive —- puts a greater emphasis on Whois accuracy

Forrest concludes:

We respectfully request and advise that the Board and ICANN Org pause any further work relating to the SSAD recommendations in light of NIS2 and given their lack of community consensus and furtherance of the global public interest. In light of these issues, the Board should remand the SSAD recommendations to the GNSO Council for the development of modified SSAD recommendations that meet the needs of users, with the aim of integrating further EU guidance.

It seems the SSAD proposals will be getting more formal scrutiny than previous GNSO outputs.

When the GNSO Council approved the recommendations in September, it did so with a footnote asking ICANN to figure out whether it would be cost-effective to implement an expensive — $9 million to build, $9 million a year to run — system that may wind up being lightly used.

ICANN has now confirmed that SSAD and the other Whois policy recommendations will be one of the first recipients of the Operational Design Phase (pdf) treatment.

The ODP is a new, additional layer of red tape in the ICANN policy-making sausage machine that slots in between GNSO Council approval and ICANN board consideration, in which the Org, in collaboration with the community, tries to figure out how complex GNSO recommendations could be implemented and what it would cost.

ICANN said this week that the SSAD/Whois recommendations will be subject to a formal ODP in “the coming months”.

Any question about the feasibility of SSAD would be referred back to the GNSO, because ICANN Org is technically not supposed to make policy.

Public comments open on new Whois policies

Kevin Murphy, February 11, 2021, Domain Policy

It’s your last chance to comment on ICANN’s proposed revisions to Whois policy.

ICANN has opened up public comments on what it opaquely calls EPDP Phase 2 Policy Recommendations for Board Consideration.

Why it just can’t use the term “Whois access”, or announce its public comment periods in layman’s terms is beyond me. Doesn’t it want public comments? Still, translating this nonsense into English keeps me in work, so I guess I won’t complain too hard.

The main feature of the proposed policy is a multi-tiered, somewhat centralized system for requesting access to Whois data about private registrants that has been redacted since the EU’s General Data Protection Regulation came into effect in May 2018.

It’s called SSAD, for System for Standardized Access and Disclosure, which was pieced together by a working group of community volunteers over a year.

Domain companies are generally okay with the compromise it represents, but intellectual property interests and others who would actually use the system think it’s a useless waste of money.

It’s expected to cost $9 million to build and $9 million a year to run.

There’s so much uncertainty about the system that in parallel with the public comments ICANN is also consulting with the GNSO Council, which approved the proposals in September, to figure out whether it’s even workable, and with the European Commission to figure out if it’s even legal.

After the public comment period closes on March 30, the comments will be compiled by ICANN staff and burned on a big fire sent to the ICANN board for final approval.

US sneaks public Whois demands into pandemic relief bill

Kevin Murphy, December 28, 2020, Domain Policy

Outgoing US president Donald Trump has signed into law a coronavirus relief bill and spending package that contains a surprise instruction for the government to pursue open access to Whois records.

The Consolidated Appropriations Act of 2021 is focused on federal spending for fiscal 2021, with billions set aside for pandemic-related economic stimulus. It’s the bill you may recall Trump refused to sign for several days on the purported basis that it only provided Americans with a piddling $600 check.

An accompanying document contains encouragement for the National Telecommunications and Information Administration to “to require registrars and registries based in the United States to collect and make public accurate domain name registration information”.

It also asks the NTIA to continue to work within ICANN’s Governmental Advisory Committee to help create “a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information”.

The text can be found in a joint explanatory statement (pdf) accompanying the act. It’s not on the statute books as such, but it does tell NTIA how to spend the money it’s been allocated.

The full text relevant to the domain name industry reads:

NTIA is directed, through its position within the Governmental Advisory Committee o work with I CANN to expedite the establishment of a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information for legitimate purposes. NTIA is encouraged, as appropriate, to require registrars and registries based in the United States to collect and make public accurate domain name registration information.

As ICANN notes in its analysis, the first sentence is not telling NTIA to do anything it hasn’t been doing since the European Union’s General Data Protection Regulation came into effect two and a half years ago.

The NTIA and GAC have been involved in efforts to create a privacy workaround for rights holders and law enforcement, which in September came up with the widely panned SSAD proposals. ICANN is currently pleading with the EU for clarity on whether it would even be legal.

The second sentence is perhaps a bit more worrying, dangling as it does the possibility of American registries and registrars having to either break EU law or implement a much more complex Whois infrastructure.

But, as ICANN notes, the words “encouraged, as appropriate” are doing a lot of heavy lifting in that sentence, saying “encouragement is aspirational; it is not a mandate”.

However, ICANN appears to be treating it as a warning shot, with head of compliance Jamie Hedlund writing:

It appears to hint that if NTIA and the ICANN community can’t develop a robust access model, Congress could entertain more forceful measures that would impose requirements on U.S.-based registries and registrars to collect and publish domain name registration information.

It seems the NTIA has the wink to cause mischief, should ICANN not deliver what intellectual property lobbyists want.

Whois privacy group finds its new chair

Kevin Murphy, December 8, 2020, Domain Policy

Verisign’s top policy veep is set to become the third chair of the ICANN working group looking at Whois policy in the post-GDPR world.

Keith Drazek has been recommended to head the long-running group, known as the EPDP, and the GNSO Council is due to vote on his appointment next week. He’s likely to be a shoo-in.

He’s VP of policy and government relations at the .com registry, and a long-standing member of the ICANN policy-making community.

I recently opined that ICANN was looking for a “masochistic mug” to chair the group. Drazek was until October the chair of the GNSO Council, and is therefore perfectly qualified for the role.

The third phase of the EPDP process, which in typical ICANNese is denominated “phase 2a”, is likely to be slightly less controversial than the first two.

The EPDP has already decided that ICANN should probably create a Standardized System for Access and Disclosure — SSAD — that may enable law enforcement and intellectual property owners to get their hands on unredacted Whois records.

But governments, IP interests and others have already dismissed the plan as useless, and there’s still a big question mark over whether SSAD is too complex and expensive to be worth implementing.

In the third phase, EPDP members will be discussing rules on distinguishing between legal and natural persons when record-holders decide what info to make public, and whether there should be a standardized system of unique, anonymized email forwarders to contact domain registrants.

They’re both less divisive topics than have been previously addressed, but not without the potential for fireworks.

The email issue, for example, could theoretically enable people to harvest a registrant’s entire portfolio of domains, something very useful for law enforcement and IP lawyers but abhorrent to privacy advocates.

The previous two phases were chaired by Kurt Pritz and Janis Karklins, with Rafik Dammak acting as vice-chair.

After 20 years, DomainTools takes its first VC dough

Kevin Murphy, December 3, 2020, Domain Tech

DomainTools has taken a “significant” investment from a venture capital firm, the first outside funding its received in its 20-year history.

The amount of the investment is undisclosed, but DomainTools said its investor is Battery Ventures.

Battery already owns stakes in numerous software and technology companies, but this appears to be its first foray into the domain name space.

Its principal, Jordan Welu, and partner Dave Tabors will join DomainTools’ board of directors and Andy Rothery, a Battery “executive-in-residence”, will become its executive chairman.

DomainTools said in a press release:

This investment will drive more rapid innovation in DomainTools’ platform capabilities for machine learning-based threat analytics and predictive risk scoring, along with enhanced product development around automating threat intelligence and incident response workflows.

The company is all about the “threat intelligence” nowadays, no doubt partly due to the fact that its original mission of aggregating the world’s Whois data will become decreasingly useful in light of privacy laws such as GDPR.

As a private company its financial position is unknown, but I’ll note that it did take a big chunk of change out of the US taxpayers’ pocket earlier this year under a government coronavirus-related corporate-relief program.