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Amsterdam refuses to publish Whois records as GDPR row escalates

Kevin Murphy, October 23, 2017, Domain Policy

Two Dutch geo-gTLDs are refusing to provide public access to Whois records in what could be a sign of things to come for the whole industry under new European privacy law.

Both .amsterdam and .frl appear to be automatically applying privacy to registrant data and say they will only provide full Whois access to vetted individuals such as law enforcement officials.

ICANN has evidently slapped a breach notice on both registries, which are now complaining that the Whois provisions in their Registry Agreements are “null and void” under Dutch and European Union law.

FRLregistry and dotAmsterdam, based in the Netherlands, are the registries concerned. They’re basically under the same management and affiliated with the local registrar Mijndomein.

dotAmsterdam operates under the authority of the city government. .frl is an abbreviation of Friesland, a Dutch province.

Both companies’ official registry sites, which are virtually identical, do not offer links to Whois search. Instead, they offer a statement about their Whois privacy policy.

That policy states that Dutch and EU law “forbids that names, addresses, telephone numbers or e-mail addresses of Dutch private persons can be accessed and used freely over the internet by any person or organization”.

It goes on to state that any “private person” that registers a domain will have their private contact information replaced with a “privacy protected” message in Whois.

Legal entities such as companies do not count as “private persons”.

Under the standard ICANN Registry Agreement, all new gTLDs are obliged to provide public Whois access under section 2.5. According to correspondence from the lawyer for both .frl and .amsterdam, published by ICANN, the two registries have been told they are in breach.

It seems the breach notices have not yet escalated to the point at which ICANN publishes them on its web site. At least, they have not been published yet for some reason.

But the registries have lawyered up already, regardless.

A letter from Jetse Sprey of Versteeg Wigman Sprey to ICANN says that the registries are free to ignore section 2.5 of their RAs because it’s not compliant with the Dutch Data Protection Act and, perhaps more significantly, the EU General Data Protection Regulation.

The GDPR is perhaps the most pressing issue for ICANN at the moment.

It’s an EU law due to come into effect in May next year. It has the potential to completely rewrite the rules of Whois access for the entire industry, sidestepping the almost two decades of largely fruitless ICANN community discussions on the topic.

It covers any company that processes private data on EU citizens; breaching it can incur fines of up to €20 million or 4% of revenue, whichever is higher.

One of its key controversies is the idea that citizens should have the right to “consent” to their personal data being processed and that this consent cannot be “bundled” with access to the product or service on offer.

According to Sprey, because the Registry Agreement does not give registrants a way to register a domain without giving their consent to their Whois details being published, it violates the GDPR. Therefore, his clients are allowed to ignore that part of the RA.

These two gTLDs are the first I’m aware of to openly challenge ICANN so directly, but GDPR is a fiercely hot topic in the industry right now.

During a recent webinar, ICANN CEO Goran Marby expressed frustration that GDPR seems to have come about — under the watch of previous CEOs — without any input from the ICANN community, consideration in the EU legislative process of how it would affect Whois, or even any discussion within ICANN’s own Governmental Advisory Committee.

“We are seeing an increasing potential risk that the incoming GDPR regulation will mean a limited WHOIS system,” he said October 4. “We appreciate that for registers and registers, this regulation would impact how you will do your business going forward.”

ICANN has engaged EU legal experts and has reached out to data commissioners in the 28 EU member states for guidance, but Marby pointed out that full clarity on how GDPR affects the domain industry could be years away.

It seems possible there would have to be test cases, which could take five years or more, in affected EU states, he suggested.

ICANN is also engaging with the community in its attempt to figure out what to do about GDPR. One project has seen it attempt to gather Whois use cases from interested parties. Long-running community working groups are also looking at the issue.

But the domain industry has accused ICANN the organization of not doing enough fast enough.

Paul Diaz and Graeme Bunton, chairs of the Registries Stakeholder Group and Registrars Stakeholder Group respectively, have recently escalated the complaints over ICANN’s perceived inaction.

They told Marby in a letter that they need to have a solution in place in the next 60 days in order to give them time to implement it before the May 2018 GDPR deadline.

Complaining that ICANN is moving too slowly, the October 13 letter states:

The simple fact is that the requirements under GDPR and the requirements in our contracts with ICANN to collect, retain, display, and transfer personal data stand in conflict with each other.

GDPR presents a clear and present contractual compliance problem that must be resolved, regardless of whether new policy should be developed or existing policy adjusted. We simply cannot afford to wait any longer to start tackling this problem head-on.

For registries and registrars, the lack of clarity and the risk of breach notices are not the only problem. Many registrars make a bunch of cash out of privacy services; that may no longer be as viable a business if privacy for individuals is baked into the rules.

Other interests, such as the Intellectual Property Constituency (in favor of its own members’ continued access to Whois) and non-commercial users (in favor of a fundamental right to privacy) are also complaining that their voices are not being heard clearly enough.

The GDPR issue is likely to be one of the liveliest sources of discussion at ICANN 60, the public meeting that kicks off in Abu Dhabi this weekend.

UPDATE: This post was updated October 25 to add a sentence clarifying that companies are not “private persons”.

Pilot program for Whois killer launches

Kevin Murphy, September 7, 2017, Domain Tech

ICANN is to oversee a set of pilot programs for RDAP, the protocol expected to eventually replace Whois.

Registration Data Access Protocol, an IETF standard since 2015, fills the same function as Whois, but it is more structured and enables access control rules.

ICANN said this week that it has launched the pilot in response to a request last month from the Registries Stakeholder Group and Registrars Stakeholder Group. It said on its web site:

The goal of this pilot program is to develop a baseline profile (or profiles) to guide implementation, establish an implementation target date, and develop a plan for the implementation of a production RDAP service.

Participation will be voluntary by registries and registrars. It appears that ICANN is merely coordinating the program, which will see registrars and registrars offer their own individual pilots.

So far, no registries or registrars have notified ICANN of their own pilots, but the program is just a few days old.

It is expected that the pilots will allow registrars and registries to experiment with different types of profiles (how the data is presented) and extensions before ICANN settles on a standard, contractually enforced format.

Under RDAP, ICANN/IANA acts as a “bootstrapping” service, maintaining a list of RDAP servers and making it easier to discover which entity is authoritative for which domain name.

RDAP is basically Whois, but it’s based on HTTP/S and JSON, making it easier to for software to parse and easier to compare records between TLDs and registrars.

It also allows non-Latin scripts to be more easily used, allowing internationalized registration data.

Perhaps most controversially, it is also expected to allow differentiated access control.

This means in future, depending on what policies the ICANN community puts in place, millions of current Whois users could find themselves with access to fewer data elements than they do today.

The ICANN pilot will run until July 31, 2018.

EFF recommends against new gTLDs

Kevin Murphy, July 28, 2017, Domain Policy

The Electronic Frontier Foundation has recommended that domain registrants concerned about intellectual property “bullies” steer clear of new gTLDs.

The view is expressed in a new EFF report today that is particularly critical of policies in place at new gTLD portfolio registries Donuts and Radix.

The report (pdf) also expresses strong support for .onion, the pseudo-TLD available only to users of the Tor browser and routing network, which the EFF is a long-term supporter of.

The report makes TLD recommendations for “security against trademark bullies”, “security against identity theft and marketing”, “security against overseas speech regulators” and “security against copyright bullies”.

It notes that no one TLD is “best” on all counts, so presents a table explaining which TLD registries — a broad mix of the most popular gTLD and ccTLD registries — have which relevant policies.

For those afraid of trademark “bullies”, the EFF recommends against 2012-round new gTLDs on the basis that they all have the Uniform Rapid Suspension service. It singles out Donuts for special concern due to its Domain Protected Marks List, which adds an extra layer of protection for trademark owners.

On copyright, the report singles out Donuts and Radix for their respective “trusted notifier” schemes, which give the movie and music industries a hotline to report large-scale piracy web sites.

These are both well-known EFF positions that the organization has expressed in previous publications.

On the other two issues, the report recommends examining ccTLDs for those which don’t have to kowtow to local government speech regulations or publicly accessible Whois policies.

In each of the four areas of concern, the report suggests taking a look at .onion, while acknowledging that the pseudo-gTLD would be a poor choice if you actually want people to be able to easily access your web site.

While the opinions expressed in the report may not be surprising, the research that has gone into comparing the policies of 40-odd TLD registries covering hundreds of TLDs appears on the face of it to be solid and possibly the report’s biggest draw.

You can read it here (pdf).

Ombudsman steps in after harassment claims in Whois group

Kevin Murphy, June 16, 2017, Domain Policy

ICANN Ombudsman Herb Waye has started monitoring an ICANN mailing list after multiple complaints of disrespectful behavior.

Waye this week told participants in the Registration Data Services working group that he is to trawl through their list archives and proactively monitor the group following “multiple complaints regarding behavior that contravenes the ICANN Expected Standards of Behavior and possibly the Community Anti-Harassment Policy”.

The RDS working group is exploring the possibility of replacing the current Whois system, in which all data is completely open, with something “gated”, restricting access to authenticated individuals based on their role.

Law enforcement agencies, for example, may be able to get a greater level of access to personal contact information than schmucks like me and you.

Privacy advocates are in favor of giving registrants more control over their data, while anti-abuse researchers hate anything that will limit their ability to stop spam, phishing and the like.

It’s controversial stuff, and arguments on the RDS WG list have been been very heated recently, sometimes spilling over into ad hominem attacks.

The Expected Standards of Behavior requires all ICANN community members to treat each other with civility.

I haven’t seen anything especially egregious, but apparently the disrespect on display has been sufficiently upsetting that the Ombudsman has had to step in.

It’s the first time, that I’m aware of, that the ICANN Ombudsman has proactively monitored a list rather than simply responding to complaints.

Waye said that he plans to deliver his verdict before ICANN 59, which kicks off in a little over a week.

ICANN loosens Whois privacy rules for registrars

Kevin Murphy, April 20, 2017, Domain Policy

ICANN has made it easier for registries and registrars to opt-out of Whois-related contractual provisions when they clash with local laws.

From this week, accredited domain firms will not have to show that they are being investigated by local privacy or law enforcement authorities before they can request a waiver from ICANN.

Instead, they’ll be also be able to request a waiver preemptively with a statement from said authorities to the effect that the ICANN contracts contradict local privacy laws.

In both cases, the opt-out request will trigger a community consultation — which would include the Governmental Advisory Committee — and a review by ICANN’s general counsel, before coming into effect.

The rules are mainly designed for European companies, as the EU states generally enjoy stricter privacy legislation than their North American counterparts.

European registrars and registries have so far been held to a contract that may force them to break the law, and the only way to comply with the law would be to wait for a law enforcement proceeding.

ICANN already allows registrars to request waivers from the data retention provisions of the 2013 Registrar Accreditation Agreement — which require the registrar to hold customer data for two years after the customer is no longer a customer.

Dozens of European registrars have applied for and obtained this RAA opt-out.