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US sneaks public Whois demands into pandemic relief bill

Kevin Murphy, December 28, 2020, 17:39:38 (UTC), Domain Policy

Outgoing US president Donald Trump has signed into law a coronavirus relief bill and spending package that contains a surprise instruction for the government to pursue open access to Whois records.

The Consolidated Appropriations Act of 2021 is focused on federal spending for fiscal 2021, with billions set aside for pandemic-related economic stimulus. It’s the bill you may recall Trump refused to sign for several days on the purported basis that it only provided Americans with a piddling $600 check.

An accompanying document contains encouragement for the National Telecommunications and Information Administration to “to require registrars and registries based in the United States to collect and make public accurate domain name registration information”.

It also asks the NTIA to continue to work within ICANN’s Governmental Advisory Committee to help create “a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information”.

The text can be found in a joint explanatory statement (pdf) accompanying the act. It’s not on the statute books as such, but it does tell NTIA how to spend the money it’s been allocated.

The full text relevant to the domain name industry reads:

NTIA is directed, through its position within the Governmental Advisory Committee o work with I CANN to expedite the establishment of a global access model that provides law enforcement, intellectual property rights holders, and third parties with timely access to accurate domain name registration information for legitimate purposes. NTIA is encouraged, as appropriate, to require registrars and registries based in the United States to collect and make public accurate domain name registration information.

As ICANN notes in its analysis, the first sentence is not telling NTIA to do anything it hasn’t been doing since the European Union’s General Data Protection Regulation came into effect two and a half years ago.

The NTIA and GAC have been involved in efforts to create a privacy workaround for rights holders and law enforcement, which in September came up with the widely panned SSAD proposals. ICANN is currently pleading with the EU for clarity on whether it would even be legal.

The second sentence is perhaps a bit more worrying, dangling as it does the possibility of American registries and registrars having to either break EU law or implement a much more complex Whois infrastructure.

But, as ICANN notes, the words “encouraged, as appropriate” are doing a lot of heavy lifting in that sentence, saying “encouragement is aspirational; it is not a mandate”.

However, ICANN appears to be treating it as a warning shot, with head of compliance Jamie Hedlund writing:

It appears to hint that if NTIA and the ICANN community can’t develop a robust access model, Congress could entertain more forceful measures that would impose requirements on U.S.-based registries and registrars to collect and publish domain name registration information.

It seems the NTIA has the wink to cause mischief, should ICANN not deliver what intellectual property lobbyists want.

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