The European Commission yesterday gave short shrift to recent claims that ICANN’s proposed Whois data retention requirements would be “unlawful” in the EU.
A recent letter from the Article 29 Working Party — an EU data protection watchdog — had said that the next version of the Registrar Accreditation Agreement may force EU registrars to break the law.
The concerns were later echoed by the Council of Europe.
But the EC stressed at a session between the ICANN board of directors and Governmental Advisory Committee yesterday that Article 29 does not represent the official EU position.
That’s despite the fact that the Article 29 group is made up of privacy commissioners from each EU state.
Asked about the letter, the EC’s GAC representative said:
Just to put everyone at ease, this is a formal advisory group concerning EU data privacy protection.
They’re there to give advice and they themselves, and we as well, are very clear that they are independent of the European Union. That gives you an idea that this is not an EU position as such but the position of the advisory committee.
The session then quickly moved on to other matters, dismaying privacy advocates in the room.
Milton Mueller of the Internet Governance Project tweeted:
By telling ICANN that it can ignore Art 29 WG opinion on privacy, European commission is telling ICANN it can ignore their national DP [data privacy] laws
Registrars hopeful that the Article 29 letter would put another nail into the coffin of some of ICANN’s more unpalatable and costly RAA demands also expressed dismay.
ICANN’s current position, based on input from law enforcement and the GAC, is that the RAA should contain new more stringent requirements on Whois data retention and verification.
It proposes an opt-out process for registrars that believe these requirements would put them in violation of local law.
But registrars from outside the EU say this would create a two-tier RAA, which they find unacceptable.
With apparently no easy compromise in sight the RAA negotiations, originally slated to be wrapped up in the first half of this year, look set to continue for many weeks or months to come.
The Council of Europe has expressed concern about the privacy ramifications of ICANN’s proposed changes to Whois requirements in the Registrar Accreditation Agreement.
In a letter this week (pdf), the Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to Personal Data (T-PD) said:
The Bureau of the T-PD took note of the position of the Article 29 Data Protection Working Parking in its comments of 26 September 2012 on the data protection impact of the revision of these arrangements concerning accuracy and data retention of the WHOIS data and fully shares the concern raised.
The Bureau of the T-PD is convinced of the importance of ensuring that appropriate consideration be given in the ICANN context to the relevant European and international privacy standards
The letter was sent in response to outreach from ICANN’s Non-Commercial Users Constituency.
The Article 29 letter referenced said that EU registrars risked breaking the law if they implemented ICANN’s proposed data retention requirements.
Earlier today, we reported on ICANN’s response, which proposes an opt-out for registrars based in the EU, but we noted that registrars elsewhere are unlikely to dig a two-tier RAA.
Registrars based in the European Union could be let off the hook when it comes to the Whois verification requirements currently under discussion at ICANN.
That’s according to ICANN CEO Fadi Chehade, who this week responded to privacy concerns expressed by the Article 29 Working Party, a EU-based quasi-governmental privacy watchdog.
The Working Party said last month that if ICANN forced EU registrars to re-verify customer data and store it for longer than necessary, they would risk breaking EU privacy law.
Those are two of the many amendments to the standard Registrar Accreditation Agreement that ICANN — at the request of governments and law enforcement — is currently pushing for.
In reply, Chehade noted that ICANN currently plans to give registrars an opt-out:
ICANN proposes to adapt the current ICANN Procedures for Handling Whois Conflicts with Privacy Law, to enable registrars to seek an exempton from these new RAA WHOIS and data protection obligations in the even that the obligations would cause registrars to violate their local laws and regulations.
He also said that the Governmental Advisory Committee has “endorsed” the provisions at question, and encouraged the Working Party to work via the GAC to have its views heard.
I understand that registrars based in the US and elsewhere would not respond favorably to what would essentially amount to a two-tier RAA.
Some of the RAA changes would have cost implications, so there’s an argument that to exempt some registrars and not others would create an un-level competitive playing field.
The Article 29 Working Party is an advisory body, independent of the European Union, comprising one representative from the data privacy watchdogs in each EU state.
Some GAC representatives said during the ICANN meeting in Prague this June that they had already factored privacy concerns into their support for the RAA talks.
It’s going to interesting to see how both registrars and the GAC react to the Article 29 developments at the Toronto meeting, which begins this weekend.
European Union privacy officials have told ICANN that it risks forcing registrars to break the law by placing “excessive” demands on Whois accuracy.
In a letter to ICANN yesterday, the Article 29 Working Party said that two key areas in the proposed next version of the Registrar Accreditation Agreement are problematic.
It’s bothered by ICANN’s attempt to make registrars retain data about their customers for up to two years after registration, and by the idea that registrars should re-verify contact data every year.
These were among the requests made by law enforcement, backed up by the Governmental Advisory Committee, that ICANN has been trying to negotiate into the RAA for almost a year.
The letter (pdf) reads:
The Working Party finds the proposed new requirement to re-verify both the telephone number and the e-mail address and publish these contact details in the publicly accessible WHOIS database excessive and therefore unlawful. Because ICANN is not addressing the root of the problem, the proposed solution is a disproportionate infringement of the right to protection of personal data.
The “root cause” points to a much deeper concern the Working Party has.
Whois was designed to help people find technical and operational contacts for domain names, it argues. Just because it has other uses — such as tracking down bad guys — that doesn’t excuse infringing on privacy.
The problem of inaccurate contact details in the WHOIS database cannot be solved without addressing the root of the problem: the unlimited public accessibility of private contact details in the WHOIS database.
It’s good news for registrars that were worried about the cost implications of implementing a new, more stringent RAA.
But it’s possible that ICANN will impose the new requirements anyway, giving European registrars an opt-out in order to comply with local laws.
The letter is potentially embarrassing for the GAC, which seemed to take offense at the Prague meeting this June when it was suggested that law enforcement’s recommendations were not being balanced with the views of privacy watchdogs.
During a June 26 session between the GAC and the ICANN board, Australia’s GAC rep said:
I don’t come here as an advocate for law enforcement only. I come here with an Australian government position, and the Australian government has privacy laws. So you can be sure that from a GAC point of view or certainly from my point of view that in my positions, those two issues have been balanced.
That view was echoed during the same session by the European Commission and the US and came across generally like a common GAC position.
The Article 29 Working Party is an advisory body set up by the EU in 1995. It’s independent of the Commission, but it comprises one representative from the data privacy watchdogs in each EU state.
Pretty soon, if you want to register a domain name in a gTLD you’ll have to verify your email address and/or phone number or risk having your domain turned off.
That’s the latest to come out of talks between registrars, ICANN, governments and law enforcement agencies, which met last week in Washington DC to thrash out a new Registrar Accreditation Agreement.
While a new draft RAA has not yet been published, ICANN has reported some significant breakthroughs since the Prague meeting in June.
Notably, the registrars have agreed for the first time to do some minimal registrant identity checks — phone number and/or email address — at the point of registration.
Verification of mailing addresses and other data points — feared by registrars for massively adding to the cost of registrations — appears to be no longer under discussion.
The registrars have also managed to win another concession: newly registered domain names will be able to go live before identities have been verified, rather than only after.
The sticking point is in the “and/or”. Registrars think they should be able to choose which check to carry out, while ICANN and law enforcement negotiators think they should do both.
According to a memo released for discussion by ICANN last night:
It is our current understanding that law enforcement representatives are willing to accept post-‐resolution verification of registrant Whois data, with a requirement to suspend the registration if verification is not successful within a specified time period. However, law enforcement recommends that if registrant Whois data is verified after the domain name resolves (as opposed to before), two points of data (a phone number and an email address) should be verified.
Among the other big changes is an agreement by registrars to an ICANN-run Whois privacy service accreditation system. Work is already underway on an accreditation framework.
After it launches, registrars will only be able to accept private registrations made via accredited privacy and proxy services.
Registrars have also agreed to some of law enforcement’s data retention demands, which has been a bone of contention due to worries about varying national privacy laws.
Under the new RAA, they would keep some registrant transaction data for six months after a domain is registered and other data for two years. It’s not yet clear which data falls into which category.
These and other issues outlined in ICANN’s latest update are expected to be talking points in Toronto next month.
It looks like a lot of progress has been made since Prague — no doubt helped by the fact that law enforcement has actually been at the table — and I’d be surprised if we don’t see a draft RAA by Beijing next April.
How long it takes to be adopted ICANN’s hundreds of accredited registrars is another matter.