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ICANN chief begs privacy watchdogs for Whois advice

Kevin Murphy, March 28, 2018, Domain Policy

ICANN CEO Goran Marby has written to the data protection authorities of all 28 European Union states, along with the European Data Protection Supervisor, to ask for guidance on how to implement new privacy laws.

Marby also asked the DPAs about the possibility of an enforcement moratorium, to give the domain industry and ICANN more time to formulate their collective response to the General Data Protection Regulation.

GDPR, which aims to give EU citizens more control over their personal data, comes into full effect May 25. Companies that break the rules face fines that could amount to millions of euros.

But ICANN does not yet have a firm plan for bringing the distributed Whois system into compliance with GDPR, and has repeatedly indicated that it needs guidance from European DPAs.

“ICANN and more than a thousand of the domain names registries and registrars are at a critical juncture,” Marby wrote (pdf).

“We need specific guidance from European data protection authorities in order to meet the needs of the global internet stakeholder community, including governments, privacy authorities, law enforcement agencies, intellectual property holders, cybersecurity experts, domain name registries, registrars, registrants and ordinary internet users,” he wrote.

ICANN has already written a proposal — known as the “Cookbook” and sent to DPAs three weeks ago — for how gTLD registrars and registries could comply with GDPR by removing most fields from public Whois records.

But Marby’s letter points out that many ICANN community members think the Cookbook either goes too far or not far enough.

As we reported a week ago, the Governmental Advisory Committee and Intellectual Property Constituency are not convinced ICANN needs to chop quite as much info from the public Whois as it’s currently planning.

But on the flipside, there are privacy advocates who think far less data should be collected on registrants and fundamentally question ICANN’s power to mandate public Whois access in its registry and registrar contracts.

Both sides of the debate are referenced in the letter.

“Guidance from DPAs on ICANN’s plan of action as presented in the Cookbook, and in particular, the areas where there are competing views, is critical as soon as possible, but particularly during the next few weeks,” Marby wrote.

Whether ICANN will get the answers it needs on the timetable it needs them is open to debate.

Many community members expressed skepticism about whether the DPAs’ commitment to the urgency of the issue matches ICANN’s own, during ICANN 61 earlier this month.

There seemed to be little confidence that the DPAs’ responses, should ICANN receive any, will provide the clarity the industry needs.

It may also be bad timing given the unrelated Cambridge Analytica/Facebook scandal, which appears to be consuming the attention of some European DPAs.

Privacy could be a million-dollar business for ICANN

Kevin Murphy, March 22, 2018, Domain Registrars

ICANN has set out the fees it plans to charge to officially accredit Whois proxy and privacy services, in the face of resistance from some registrars.

VP of finance Becky Nash told registrars during a session at ICANN 61 last week that they can expect to pay $3,500 for their initial accreditation and $4,000 per year thereafter.

Those are exactly the same fees as ICANN charges under its regular registrar accreditation program.

Registrars that also offer privacy should expect to see their annual ICANN flat fees double, in other words. Per-domain transaction fees would be unaffected.

The up-front application fee would be reduced $2,000 when the privacy service is to be offered by an accredited registrar, but it would stay at $3,500 if the company offering service is merely “affiliated” with the registrar.

Nash said all the fees have been calculated on a per-accreditation basis, independent of the volume of applications ICANN receives.

Director of registrar services Jennifer Gore said that while ICANN has not baked an estimate of the number of accredited providers into its calculations, registrars have previously estimated the number at between 200 and 250 companies.

That would put the upper end of annual accreditation fees at $1 million, with $875,000 up-front for initial applications.

Volker Greimann, general counsel of the registrar Key-Systems, pointed out during the session that many registrars give away privacy services for free or at cost.

“This just adds cost to an already expensive service that does not really make money for a lot of providers,” he said.

He suggested that the prices could lead to unexpected negative consequences.

“Pricing this in this region will just lead to a lot of unaccredited providers that will switch names every couple months, an underground that we don’t really want,” he said. “We want to have as many people on board as possible and the way to do that is to keep costs low.”

“Pricing them out of the market is not the way to attract providers to join this scheme,” he said.

Nash responded that registrars are forbidden under the incoming privacy/proxy policy from accepting registrations from unaccredited services.

She added that the fees have been calculated on a “cost-recovery” basis. Costs include the initial background checks, outreach, contract admin, compliance, billing and so on.

But some registrars expressed skepticism that the proposed fees could be justified, given that ICANN does not plan to staff up to administer the program.

Another big question is whether proxy/privacy services are going to continue to have value after May this year, when the European Union’s General Data Protection Regulation kicks in.

The current ICANN plan for GDPR compliance would see individual registrants have all of their private information removed from the public Whois.

It’s not currently clear how many people and what kinds of people will continue to have access to unmasked Whois, so there are likely still plenty of cases where individuals might feel they need an extra layer of protection — if they live in a dictatorship and are engaged in rebellious political speech, for example.

There could also be cases where companies wish to mask their details ahead of, say, a product launch.

And, let’s face it, bad actors will continue to want to use privacy services on domains they intend to misuse.

The proxy/privacy policy came up through the formal GNSO Policy Development Process and was approved two years ago. It’s currently in the implementation phase.

According to a presentation from the ICANN 61 session, ICANN hopes to put the final implementation plan out for public comment by the end of the month.

Is ICANN over-reacting to Whois privacy law?

Kevin Murphy, March 20, 2018, Domain Policy

Is ICANN pushing the domain industry to over-comply with the European Union’s incoming General Data Protection Regulation privacy law?

Governments and plenty of intellectual property and business lobbyists think so.

After days of criticism from unhappy IP lawyers, ICANN’s public meeting in Puerto Rico last week was capped with a withering critique of the organization’s proposed plan for the industry to become GDPR compliant as pertains Whois.

The Governmental Advisory Committee, in unusually granular terms, picked apart the plan in its usual formal, end-of-meeting advice bomb, which focused on making sure law enforcement and IP owners continue to get unfettered Whois access after GDPR kicks in in May.

Key among the GAC’s recommendations (pdf) is that the post-GDPR public Whois system should continue to publish the email address of each domain registrant.

Under ICANN’s plan — now known as the “Cookbook” — that field would be obscured and replaced with a contact form or anonymized email address.

The GAC advised ICANN to “reconsider the proposal to hide the registrant email address as this may not be proportionate in view of the significant negative impact on law enforcement, cybersecurity and rights protection;”.

But its rationale for the advice is a little wacky, suggesting that email addresses under some unspecified circumstances may not contain “personal data”:

publication of the registrant’s email address should be considered in light of the important role of this data element in the pursuit of a number of legitimate purposes and the possibility for registrants to provide an email address that does not contain personal data.

That’s kinda like saying your mailing address and phone number aren’t personal data, in my view. Makes no sense.

The GAC advice will have won the committee friends in the Intellectual Property Constituency and Business Constituency, which throughout ICANN 61 had been pressuring ICANN to check whether removing email addresses from public Whois was strictly necessary.

ICANN is currently acting as a non-exclusive middleman between community members and the 20-odd Data Protection Authorities — which will be largely responsible for enforcing GDPR — in the EU.

It’s running compliance proposals it compiles from community input past the DPAs in the hope of a firm nod, or just some crumbs of guidance.

But the BC and IPC have been critical that ICANN is only submitting a single, rather Draconian proposal — one which would eschew email addresses from the public Whois — to the DPAs.

In a March 13 session, BC member Steve DelBianco pressed ICANN CEO Goran Marby and other executives and directors repeatedly on this point.

“If they [the DPAs] respond ‘Yes, that’s sufficient,’ we won’t know whether it was necessary,” DelBianco said, worried that the Cookbook guts Whois more than is required.

ICANN general counsel John Jeffrey conceded that the Cookbook given to the DPAs only contains one proposal, but said that it also outlines the “competing views” in the ICANN community on publishing email addresses and asks for guidance.

But email addresses are not the only beef the GAC/IPC/BC have with the ICANN proposal.

On Thursday, the GAC also advised that legal entities that are not “natural persons” should continue to have their full information published in the public Whois, on the grounds that GDPR only applies to people, not organizations.

That’s contrary to ICANN’s proposal, which for pragmatic reasons makes no distinction between people and companies.

There’s also the question of whether the new regime of Whois privacy should apply to all registrants, or just those based in the European Economic Area.

ICANN plans to give contracted parties the option to make it apply in blanket fashion worldwide, but some say that’s overkill.

Downtime for Whois?

While there’s bickering about which fields should be made private under the new regime, there doesn’t seem to be any serious resistance to the notion that, after May, Whois will become a two-tier system with a severely depleted public service and a firewalled, full-fat version for law enforcement and whichever other “legitimate users” can get their feet in the door.

The problem here is that while ICANN envisions an accreditation program for these legitimate users — think trademark lawyers, security researchers, etc — it has made little progress towards actually creating one.

In other words, Whois could go dark for everyone just two months from now, at least until the accreditation program is put in place.

The GAC doesn’t like that prospect.

It said in its advice that ICANN should: “Ensure continued access to the WHOIS, including non-public data, for users with a legitimate purpose, until the time when the interim WHOIS model is fully operational, on a mandatory basis for all contracted parties”.

But ICANN executives said in a session on Thursday that the org plans to ask the DPAs for a deferral of enforcement of GDPR over Whois until the domain industry has had time to come into compliance while continuing to grant access to full Whois to police and special interests.

December appears to be the favored date for this proposed implementation deadline, but ICANN is looking for feedback on its timetable by this coming Friday, March 23.

But the IPC/BC faction are not stting on their hands.

Halfway through ICANN 61 they expressed support for a draft accreditation model penned by consultant Fred Felman, formerly of brand protection registrar MarkMonitor.

The model, nicknamed “Cannoli” (pdf) for some reason, unsurprisingly would give full Whois access to anyone with enough money to afford a trademark registration, and those acting on behalf of trademark owners.

Eligible accreditees would also include security researchers and internet safety organizations with the appropriate credentials.

Once approved, accredited Whois users would have unlimited access to Whois records for defined purposes such as trademark enforcement or domain transfers. All of their queries would be logged and randomly audited, and they could lose accreditation if found to be acting outside of their legitimate purpose.

But Cannoli felt some resistance from ICANN brass, some of whom pointed out that it had been drafted by just one part of the community

“If the community — the whole community — comes up with an accreditation model we would be proud to put that before the DPAs,” Marby said during Thursday’s public forum in Puerto Rico.

It’s a somewhat ironic position, given that ICANN was just a few weeks ago prepared to hand over responsibility for creating the first stage of the accreditation program — covering law enforcement — wholesale to the GAC.

The GAC’s response to that request?

It’s not interested. Its ICANN 61 communique said the GAC “does not envision an operational role in designing and implementing the proposed accreditation programs”.

Now Latvia guts Whois to comply with GDPR

Kevin Murphy, March 19, 2018, Domain Registries

Latvia has become the latest country to announce plans to cut back on Whois provision to comply with incoming European Union privacy law.

Its .lv ccTLD is the first I’m aware of to announce that it plans to cut back on the amount of data it actually collects in addition to how much it publishes.

NIC.lv said it will not longer require registrants to submit one postal address, instead of two. It will not longer require a something called a “fax” number, whatever that is, either.

The registry currently does not publish the names or physical addresses of its natural person registrants, but following the introduction of the General Data Protection Regulation in May it will stop publishing telephone numbers and email addresses too.

It will instead present a form that can be used to contact the registrant, a little like ICANN is proposing for gTLDs.

The company also plans to rate-limit Whois queries to mitigate harvesting.

The proposed changes are open for comments until April 12.

.lv has about 120,000 domains under management, according to its web site.

Austria to stop publishing most Whois data

Kevin Murphy, March 15, 2018, Domain Registries

Austrian ccTLD operator nic.at will no longer publish any Whois information for individual registrants, in order to comply with incoming EU privacy law.

“Natural persons’ data will no longer be published from mid-May 2018,” the company said today.

Data concerning legal entities such as companies will continue to be published, it added.

The move is of course an effort to become compliant with the General Data Protection Regulation, which currently has the industry scrambling around in the dark looking for ways avoid avoid millions of euros of potential fines.

nic.at will continue to collect the private data of individual registrants, but it will only publish technical information such as the name of the registrar and name servers in response to public Whois queries.

Companies will have their names and addresses published, but will have the option to have their email address and phone number hidden.

nic.at said it will disclose records to “law enforcement agencies, lawyers or people who contact nic.at following domain disputes and can prove that their rights have been infringed”.

People will be able to opt-in to having their information published

It’s arguably a more Draconian implementation of GDPR than the one proposed by ICANN for gTLDs, but it appears to be in line with plans already announced by Nominet for .uk and DENIC for .de.