Is the new Whois policy group already doomed to fail?

ICANN’s Generic Names Supporting Organization has set itself extremely aggressive, some might say impossible, targets for its emergency Whois policy work.
The GNSO Council on Thursday approved the charter for a new working group that will attempt to come up with a consensus policy for how to amend the Whois system in light of the EU’s General Data Protection Regulation.
But the vote was not unanimous — three of the six Non-Commercial Stakeholder Group councilors abstained largely because they think intellectual property interests have managed to capture the discussion before it has begun.
The three abstentions were independent consultant Ayden Ferdeline, cybersecurity policy researcher Tatiana Tropina, and privacy consultant Stephanie Perrin.
Tropina said during the Thursday meeting: “I cannot vote ‘yes’ for a document that in my opinion has parts that are not properly worded and, instead of setting the scope of the EPDP [Expedited Policy Development Process] work, set up multiple possibilities to get the work sidetracked.”
She and Ferdeline pointed specifically to section J of the approved charter (pdf), which addresses “reasonable access” to non-public Whois data.
This is the part of the policy work that will decide whether, and to what extent, entities such as trademark owners and cybersecurity researchers will be able to peek behind the curtain of post-GDPR personal data redactions and see who actually owns domain names.
There are several “gating” questions that the working group must answer before it gets to J, however, such as: what data should be collected by registrars, how data transfer to registries should be handled, and are the reasons for this data to be collected all valid?
But when it comes to section J, the abstaining NCSG councilors reckon that the Intellectual Property Community has managed to sneak in the notion that its members should get access to private data as a fait accompli. Section J reads in part:

What framework(s) for disclosure could be used to address (i) issues involving abuse of domain name registrations, including but not limited to consumer protection, investigation of cybercrime, DNS abuse and intellectual property protection, (ii) addressing appropriate law enforcement needs, and (iii) provide access to registration data based on legitimate interests not outweighed by the fundamental rights of relevant data subjects?

Ferdeline said in his abstention:

I believe that Section J includes, first and foremost, questions that unnecessarily expand the scope of this EPDP and put perceived answers — rather than genuine, open ended questions — into this important document. Overall I think this section of the charter’s scope is unnecessary and will not allow the EPDP team to complete their work in a timely manner.

Tropina said J “poses the questions that, first of all, imply by default that issues related to intellectual property protection and consumer protection require the disclosure of personal data”, adding that she was bewildered that IP interests had been lumped in with security concerns:

This wording fails me: as I am criminal lawyer working in the field of frameworks for cybercrime investigation, I do not see why cybercrime investigations are separated from law enforcement needs and go to the same basket with intellectual property protection as they are on a completely different level of legitimate demands

In short, the newly approved EPDP charter has been framed in such a way as to make discussions extremely fractious from the outset, pitting privacy interests against those of the trademark lobby on some of the most divisive wedge issues.
This is problematic given that the working group has an extremely aggressive schedule — its members have not yet even been named and yet it expects to produce its Initial Report shortly after ICANN 63, which ends October 25 this year.
It’s an absurdly short space of time to resolve questions that have dogged ICANN for almost two decades.
Will this pressure to come to agreement against the clock work in favor of the trademark community, or will it doom the policy-making process to deadlock?
Attempting to steer the WG through this minefield will be Kurt Pritz, who was confirmed by the Council as its neutral chair on Thursday, as DI first reported a week ago.
The make-up of the group has also proved contentious.
While it is a GNSO process that would lead to a Consensus Policy binding on all gTLD registries and registrars, the decision has been made to bring in voices from other areas of the community, such as the Country Code Names Supporting Organization, which will not be directly affected by the resulting policy.
There will be 29 members in total, not counting the non-voting chair.
The GNSO gets 18 of these seats at the table, comprising: three registries, three registrars, two IPC members, two ISPs, two Business Constituency members, six NCSG members (which, I imagine would be split between the privacy-focused NCUC and more IP-friendly NPOC).
But also joining the group on an equal footing will be two members of the Root Server System Advisory Committee (I’ve no idea why), two from the Security and Stability Advisory Committee, two from the ccNSO, two from the At-Large Advisory Committee and three from the Governmental Advisory Committee.
The actual individuals filling these seats will be named by their respective constituencies in the next few days, ahead of the first WG meeting July 30.
It has been said that these people could expect to devote north of 30 hours a week (unpaid of course, though any necessary travel will be comp’d) to the discussions.

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Tagged: epdp, gdpr, gnso, ICANN, privacy, security, trademarks, whois