No, I don’t get what’s going on with GDPR either

GDPR comes into effect next week, changing the Whois privacy landscape forever, and like many others I still haven’t got a clue what’s going on.
ICANN’s still muddling through a temporary Whois spec that it hopes will shield itself and the industry from fines, special interests are still lobbying for special privileges after May 25, EU privacy regulators are still resisting ICANN’s begging expeditions, and registries and registrars are implementing their own independent solutions.
So what will Whois look like from next Friday? It’s all very confusing.
But here’s what my rotting, misfiring, middle-aged brain has managed to process over the last several days.
1. Not even the ICANN board agrees on the best way forward
For the best part of 2018, ICANN has been working on a temporary replacement Whois specification that it could crowbar into its contracts in order to enforce uniformity across the gTLD space and avoid “fragmentation”, which is seen as a horrific prospect for reasons I’ve never fully understood (Whois has always been fragmented).
The spec has been based on legal advice, community and industry input, and slim guidance from the Article 29 Working Party (the group comprising all EU data protection authorities or DPAs).
ICANN finally published a draft (pdf) of the spec late last Friday, May 11.
That document states… actually, forget it. By the time the weekend was over it and I had gotten my head around it, it had already been replaced by another one.
Suffice it to say that it was fairly vague on certain counts — crucially, what “legitimate purposes” for accessing Whois records might be.
The May 14 version came after the ICANN board of directors spent 16 hours or so during its Vancouver retreat apparently arguing quite vigorously about what the spec should contain.
The result is a document that provides a bit more clarity about that it hopes to achieve, and gets a bit more granular on who should be allowed access to private data.
Importantly, between May 11 and May 14, the document started to tile the scales a little away from the privacy rights of registrants and towards towards the data access rights of those with the aforementioned legitimate purposes for accessing it.
One thing the board could agree on was that even after working all weekend on the spec, it was still not ready to vote to formally adopt it as a Temporary Policy, which would become binding on all registries and registrars.
It now plans to vote on the Temporary Policy tomorrow, May 17, after basically sleeping on it and considering the last-minute yowls and cries for help from the variously impacted parts of the community.
I’ll report on the details of the policy after it gets the nod.
2. ICANN seems to have grown a pair
Tonally, ICANN’s position seems to have shifted over the weekend, perhaps reflecting an increasingly defiant, confident ICANN.
Its weekend resolution asserts:

the global public interest is served by the implementation of a unified policy governing aspects of the gTLD Registration Data when the GDPR goes into full effect.

For ICANN to state baldly, in a Resolved clause, that something is in the “global public interest” is notable, given what a slippery topic that has been in the past.
New language in the May 14 spec (pdf) also states, as part of its justification for continuing to mandate Whois as a tool for non-technical purposes: “While ICANN’s role is narrow, it is not limited to technical stability.”
The board also reaffirmed that it’s going to reject Governmental Advisory Committee advice, which pressured ICANN to keep Whois as close to its current state as possible, and kick off a so-called “Bylaws consultation” to see if there’s any way to compromise.
I may be reading too much into all this, but it seems to me that having spent the last year coming across as a borderline incompetent johnny-come-lately to the GDPR conversation, ICANN’s becoming more confident about its role.
3. But it’s still asking DPAs for a moratorium, kinda
When ICANN asked the Article 29 Working Party for a “moratorium” on GDPR enforcement, to give itself and the industry some breathing space to catch up on its compliance initiatives, it was told no such thing was legally possible.
Not to be deterred, ICANN has fired back with a long list of questions (pdf) asking for assurances that DPAs will not start fining registrars willy-nilly after the May 25 deadline.
Sure, there may be no such thing as a moratorium, ICANN acknowledges, but can the DPAs at least say that they will take into account the progress ICANN and the industry is making towards compliance when they consider their responses to any regulatory complaints they might receive?
The French DPA, the Commission Nationale de L’informatique & Libertés, has already said it does not plan to fine companies immediately after May 25, so does that go for the other DPAs too? ICANN wants to know!
It’s basically another way of asking for a moratorium, but one based on aw-shucks reasonableness and an acknowledgement that Whois is a tricky edge case that probably wasn’t even considered when GDPR was being developed.
4. No accreditation model, yet
There’s no reference in the new spec to an accreditation model that would give restricted, tiered access to private Whois data to the likes of security researchers and IP lawyers.
The board’s weekend resolution gives a nod to ongoing discussions, led by the Intellectual Property Constituency and Business Constituency (and reluctantly lurked on by other community members), about creating such a model:

The Board is aware that some parts of the ICANN community has begun work to define an Accreditation Model for access to personal data in Registration Data. The Board encourages the community to continue this work, taking into account any advice and guidance that Article 29 Working Party or European Data Protection Board might provide on the topic.

But there doesn’t appear to be any danger of this model making it into the Temporary Policy tomorrow, something that would have been roundly rejected by contracted parties.
While these talks are being given resource support by ICANN (in terms of mailing lists and teleconferencing), they’re not part of any formal policy development process and nobody’s under any obligation to stick to whatever model gets produced.
The latest update to the accreditation model spec, version 1.5, was released last Thursday.
It’s becoming a bit of a monster of a document — at 46 pages it’s 10 pages longer than the ICANN temporary spec — and would create a hugely convoluted system in which people wanting Whois access would have to provide photo ID and other credentials then pay an annual fee to a new agency set up to police access rights.
More on that in a later piece.
5. Whois is literally dead
The key technical change in the temporary Whois spec is that it’s not actually Whois at all.
Whois is not just the name given to the databases, remember, it’s also an aging technical standard for how queries and responses are passed over the internet.
Instead, ICANN is going to mandate a switch to RDAP, the much newer Registration Data Access Protocol.
RDAP makes Whois output more machine-readable and, crucially, it has access control baked in, enabling the kind of tiered access system that now seems inevitable.
ICANN’s new temporary spec would see an RDAP profile created by ICANN and the community by the end of July. The industry would then have 135 days — likely a late December deadline — to implement it.
Problem is, with a few exceptions, RDAP is brand-new tech to most registries and registrars.
We’re looking at a steep learning curve for many, no doubt.
6. It’s all a bit of a clusterfuck
The situation as it stands appears to be this:
ICANN is going to approve a new Whois policy tomorrow that will become binding upon a few thousand contracted parties just one week later.
While registries and registrars have of course had a year or so’s notice that GDPR is coming and will affect them, and I doubt ICANN Compliance will be complete assholes about enforcement in the near term, a week’s implementation time on a new policy is laughably, impossibly short.
For non-contracted parties, a fragmented Whois seems almost inevitable in the short term after May 25. Those of us who use Whois records will have to wait quite a bit longer before anything close to the current system becomes available.

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Tagged: article 29 working party, gac, gdpr, ICANN, privacy, temporary policy, whois