New gTLD fees could be kept artificially high

More windfalls for ICANN? It’s possible that application fees for new gTLDs could be artificially propped up in order to discourage gaming.
In the newly published draft policy recommendations for the next new gTLD round, ICANN volunteers expressed support for keeping fees high “to deter speculation, warehousing of
TLDs, and mitigating against the use of TLDs for abusive or malicious purposes”.
It’s one of the ideas posed in the the Initial Report on the New gTLD Subsequent Procedures Policy Development Process, published this week.
It recommends that ICANN continues to price its application fees on a revenue-neutral basis, but with one big exception.
The report notes that there’s support for an “application fee floor” — a minimum fee threshold that would not be crossed no matter how cheap application processing actually becomes:

there might be a case where a revenue neutral approach results in a fee that is “too low,” which could result in an excessive amount of applications (e.g., making warehousing, squatting, or otherwise potentially frivolous applications much easier to submit), reduce the sense of responsibility and value in managing a distinct and unique piece of the Internet, and diminish the seriousness of the commitment to owning a TLD.

The subgroup looking at fees was “generally supportive” of the notion of a floor, the report says.
If the fee floor were used, excess funds would have to be pumped into efforts such as “universal acceptance”, the ongoing outreach project that hopes to persuade developers to ensure their software supports all TLDs.
It could also be used to support applications from the poorer regions of the world.
I wonder how much of a deterrent to warehousing an artificially high application fee would be; deep-pocketed Google and Amazon appear to have warehoused dozens of TLDs they applied for in the 2012 round.
The application fee in 2012 was $185,000 per string, priced on a “cost recovery” basis. The idea was that ICANN shouldn’t use the fees to subsidize its regular operations and vice versa.
But with roughly one third of that amount earmarked for unexpected contingencies — basically a legal defense fund — ICANN currently has close to $100 million in unspent fees sitting idle in a dedicated bank account.
The Initial Report also discusses whether application fees should be varied based on application type, as well as posing dozens of other questions for the community on the rules for the next round of new gTLDs.
Comment here.

First-come, first-served for new gTLDs? Have your say

Should new gTLDs be allocated on a first-come, first-served basis? That’s a possibility that has not yet been ruled out by the ICANN community.
The ICANN working group currently writing policy for the next round of gTLD applications has published its first draft for public comment, and FCFS is one option still on the table.
The Initial Report on the New gTLD Subsequent Procedures Policy Development Process outlines six possible paths for the new gTLD program, and the group wants to hear your feedback.
The six options presented range from a 2012-style one-off application round, followed again by a potentially interminable series of reviews, to full-on FCFS from day one.
With neither of those extremes particularly appealing, the working group seems to be erring towards one of the four other choices.
ICANN could, for example, announce two or three more rounds, with firm dates for each perhaps separated by a year or two, followed by a long breather period.
Or it could kick of an endless series of application periods, perhaps happening at the same time every year.
Or it could conduct one or more rounds before implementing full FCFS.
The report lists many of the pros and cons of these various options.
For example, FCFS could lead to scrappy applications, gTLD warehousing, capture by ICANN insiders, and disadvantages to community applicants, but it could also reduce the cost of acquiring a gTLD by eliminating expensive auction-based contention resolution.
Conversely, the round-based structure could cause scaling problems for ICANN, could face unanticipated delays, and may not be responsive to applicants’ business needs, the report says.
The working group could not reach consensus on which model should be used, but it noted that there was no appetite for either immediate FCFS or another 2012-style effort. Its report states:

The Working Group recommends that the next introduction of new gTLDs shall be in the form of a “round.” With respect to subsequent introductions of the new gTLDs, although the Working Group does not have any consensus on a specific proposal, it does generally believe that it should be known prior to the launch of the next round either (a) the date in which the next introduction of new gTLDs will take place or (b) the specific set of criteria and/or events that must occur prior to the opening up of the subsequent process. For the purposes of providing an example, prior to the launch of the next round of new gTLDs, ICANN could state something like, “The subsequent introduction of new gTLDs after this round will occur on January 1, 2023 or nine months following the date in which 50% of the applications from the last round have completed Initial Evaluation.”

The question of how to balance rounds and, potentially, FCFS, is one of many, many questions posed in the 310-page initial report. You can comment here.
Expect more coverage of this monster from DI shortly.

ICANN heads to Cancun for Spring Break boondoggle

ICANN has named the three venues for its 2020 public meetings. They are Cancun, Kuala Lumpur and Hamburg.
The first meeting of the year, the so-called Community Forum, will be held March 7 to 12 at the Cancun International Convention Center.
Cancun is pretty horrific at the best of times, but the March dates place ICANN 67 in peak Spring Break — the time of year when American university students descend on Cancun by their thousands to take advantage, to excess, of Mexico’s more reasonable drinking age laws.
Don’t expect to keep your T-shirts dry.
Meeting two, the more modest Policy Forum, will see ICANN head to Malaysia, specifically the Kuala Lumpur Convention Center, from June 22 to 25. The local chapter of the Internet Society is hosting.
Finally, the AGM will be held in Hamburg, Germany, where eco, DENIC and the local city council will host at the Congress Center.
Before 2020, we still have Barcelona later this year, and Kobe, Marrakech (again) and Montreal (again) in 2019. The Panama City policy forum is going on right now.
ICANN’s rules require it to rotate its meeting locations around the five major geographic regions.

How ICANN thinks YOU could get full Whois access

With blanket public Whois access now firmly a thing of the past due to GDPR, ICANN has set the ball rolling on an accreditation system that would reopen the data doors to certain select parties.
The org yesterday published a high-level framework document for a “Unified Access Model” that could give Whois access to approved users such as police, lawyers, and even common registrants.
It contains many elements that are sure to be controversial, such as paying fees for Whois access, the right of governments to decide who gets approved, and ICANN’s right to see every single Whois query carried out under the program.
It’s basically ICANN’s attempt to frame the conversation about Whois access, outlining what it expects from community members such as registries and registrars, governments and others.
It outlines a future in which multiple “Authenticating Bodies” would hand out credentials (either directly or via referral to a central authority) to parties they deem eligible for full Whois access.
These Authenticating Bodies could include entities such as WIPO or the Trademark Clearinghouse for trademark lawyers and Interpol or Europol for law enforcement agencies.
Once suitably credentialed, Whois users would either get unexpurgated Whois access or access to only fields appropriate to their stated purpose. That’s one of many questions still open for discussion.
There could be fees levied at various stages of the process, but ICANN says there should be a study of the financial implications of the model before a decision is made.
Whois users would have to agree to a code of conduct specific to their role (cop, lawyer, registrant, etc) that would limit how they could use the data they acquire.
Additionally, registrars and registries would have to log every single Whois query and hand those logs over to ICANN for compliance and audit purposes. ICANN said:

based on initial discussions with members of the Article 29 Working Party, ICANN proposes that registry operators and registrars would be required to maintain audit logs of domain name queries for non-public WHOIS data, unless logging a particular entry is contrary to a relevant court order. The logs would be available to ICANN org for audit/compliance purposes, relevant data protection authorities, the registrant, or pursuant to a court order.

On the higher-level question of who should be given the keys to the new gates Whois — it’s calling them “Eligible User Groups” — ICANN wants to outsource the difficult decisions to either governments or, as a backstop, the ICANN community.
The proposal says: “Eligible User Groups might include intellectual property rights holders, law enforcement authorities, operational security researchers, and individual registrants.”
It wants the European Economic Area members of its Governmental Advisory Committee, and then the GAC as a whole, to “identify or facilitate identification of broad categories” of eligible groups.
ICANN’s next public meeting, ICANN 62, kicks off in Panama at the weekend, so the GAC’s next formal communique, which could address this issue, is about a week away.
ICANN also wants the GAC to help it identify potential Authenticating Bodies that would hand out credentials.
But the GAC, in its most recent communique, has already declined such a role, saying in March that it “does not envision an operational role in designing and implementing the proposed accreditation programs”.
If it sticks with that position, ICANN says it will turn to the community to have this difficult conversation.
It notes specifically the informal working group that is currently developing a “community” Accreditation & Access Model For Non-Public WHOIS Data.
This group is fairly controversial as it is perceived by some, fairly I think, as being dominated by intellectual property interests.
The group’s draft model is already in version 1.6 (pdf), and at 47 pages is much more detailed than ICANN’s proposal, but its low-traffic mailing list has almost no contracted parties on board and the IP guys are very decidedly holding the pen.
There’s also a separate draft, the Palage Differentiated Registrant Data Access Model (or “Philly Special”) (Word doc), written by consultant Michael Palage, which has received even less public discussion.
ICANN’s proposal alludes to these drafts, but it does not formally endorse either as some had feared. It does, however, provide a table (pdf) comparing its own model to the other two.
What do not get a mention are the access models already being implemented by individual registrars.
Notably, Tucows is ready to launch TieredAccess.com, a portal for would-be Whois users to obtain credentials to view Tucows-managed Whois records.
This system grants varying levels of access to “law enforcement, commercial litigation interests, and security researchers”, with law enforcement given the highest level of access, Tucows explained in a blog post yesterday.
That policy is based on the GDPR principle of “data minimization”, which is the key reason it’s currently embroiled in an ICANN lawsuit (unrelated to accreditation) in Germany.
Anyway, now that ICANN has published its own starting point proposal, it is now expected that the community will start to discuss the draft in a more formal ICANN setting. There are several sessions devoted to GDPR and Whois in Panama.
ICANN also expects to take the proposal to the European Data Protection Board, the EU committee of data protection authorities that replaced the Article 29 Working Party when GDPR kicked in last month.
However, in order for any of this to become binding on registries and registrars it will have to be baked into their contracts, which will mean it going through the regular ICANN policy development process, and it’s still not clear how much enthusiasm there is for that step happening soon.

Domainers could lose their names as .au loophole closes

Domain investors dabbling in the .au space could face losing their names under new policies set to be proposed.
The .au Policy Review Panel, which helps set policy for Australian ccTLD registry auDA, said this week it is thinking about closing a loophole related to domain monetization that has allowed “speculation and warehousing” in violation of longstanding rules.
Monetized domains are “largely detrimental” to .au and rules permitting the practice should be scrapped, the panel is expected to formally conclude.
Anyone currently monetizing domains could be given as little as a day to comply with the new rules or face losing their names.
The expected recommendations were outlined in a memo (pdf) penned by panel chair John Swinson, an intellectual property lawyer, who wrote:

the Panel received a lot of feedback and information from the public that Domain Monetisation is largely detrimental to the name space. Feedback, including from sophisticated businesses, domain brokers and portfolio owners, was one could register almost any domain name under the Domain Monetisation rule, and that the current rules were unclear, and that domain names were being registered under the cover of Monetisation primarily for the purposes of resale or warehousing (which is contrary to the current policy).

Current auDA policy on domaining, dating from 2012, is pretty clear when it comes to domainers: “A registrant may not register a domain name for the sole purpose of resale or transfer to another entity.”
However, there’s a loophole when it comes to domains that are monetized with ad links. If a domain is monetized, reselling no longer becomes its “sole purpose”.
Another auDA policy also from 2012 specifically permits monetization as a valid reason for owning a .com.au or .net.au name.
It says that monetized domains must carry ad content relevant to the topic of the domain, and that there should be no brand infringement in the domain itself.
Swinson’s panel agreed in a May 1 meeting (pdf) that this rule should be scrapped.
It’s not entirely clear what would come to replace it, as the panel doesn’t seem likely to actually ban monetization as such. Swinson wrote:

Because the current rules are outdated, inconsistent and unclear, it is difficult to enforce the current rules that prevent the registration of domain names for domain speculation and warehousing.
The Panel’ s current view is that Domain Monetisation will not be banned, but of itself will not be a basis to meet the allocation criteria.

The “allocation criteria” refers to the eligibility requirements for .au domains, which currently require a “close and substantial” link between the registrant and the name.
The panel’s memo states that there would be a “grandfathering” period during which domainers whose sites do not comply with the new policy would have time to update them:

The Panel’s current view is to recommend that any new eligibility and allocation rules should apply on the next renewal of a domain name license. This will give domain name licensees who meet the current rules, but who will not meet any new rules, time to deal with the non-compliance.

The problem here of course is that the “next renewal” could be anywhere from a day to two years away, depending on the domain. That’s probably an area the panel needs to look at.
The monetization issue is one of several addressed in the panel’s interim report (pdf), which also looks at the possibility of direct, second-level domain registration.
Any new policy on either issue is still many months away.

In GDPR case, ICANN ready to fight Tucows to the bitter end

ICANN has appealed its recent court defeat as it attempts to force a Tucows subsidiary to carry on collecting full Whois data from customers.
The org said yesterday that it is taking its lawsuit against Germany-based EPAG to a higher court and has asked it to bounce the case up to the European Court of Justice, as the first test case of the new General Data Protection Regulation.
In its appeal, an English translation (pdf) of which has been published, ICANN argues that the Higher Regional Court of Cologne must provide an interpretation of GDPR in order to rule on its request for an injunction.
And if it does, ICANN says, then it is obliged by the GDPR itself to refer that question to the ECJ, Europe’s highest judicial authority.
The case concerns Tucows’ refusal to carry on collecting contact information about the administrative and technical contacts for each domain name it sells, which it is contractually obliged to do under ICANN’s Whois policy.
These are the Admin-C and Tech-C fields that complement the registrant’s own contact information, which Tucows is of course still collecting.
Tucows says that these extra fields are unnecessary, and that GDPR demands it minimize the amount of data it collects to only that which it strictly needs to execute the registration contact.
It also argues that, if the Admin-C and Tech-C are third parties, it has no business collecting any data on them at all.
According to Tucows legal filings, more than half of its 10 million domains have identical data for all three contacts, and in more than three quarters of cases the registrant and Admin-C are identical.
In its appeal, ICANN argues that the data is “crucial for the objectives of a secure domain name system, including but not limited to the legitimate purposes of consumer protection,
investigation of cybercrime, DNS abuse and intellectual property protection and law enforcement needs”.
ICANN uses Tucows’ own numbers against it, pointing out that if Tucow has 7.5 million domains with shared registrant and Admin-C data, it therefore has 2.5 million domains where the Admin-C is a different person or entity, proving the utility of these records.
It says that registrars must continue to collect the disputed data, at the very least if it has secured consent from the third parties named.
ICANN says that nothing in the Whois policy requires personal data to be collected on “natural persons” — Admin-C and Tech-C could quite easily be legal persons — therefore there is no direct clash with GDPR, which only covers natural persons.
Its appeal, in translation, reads: “the GDPR is irrelevant if no data about natural persons are collected. In this respect, the Defendant is contractually obliged to collect such data, and failure to do so violates its contract with the Applicant.”
It goes on to argue that even if the registrant chooses to provide natural-person data, that’s still perfectly fine as a “legitimate purpose” under GDPR.
ICANN was handed a blow last month after a Bonn-based court refused to give it an injunction obliging EPAG (and, by inference, all registrars) to continue collecting Admin-C and Tech-C.
The lower court had said that registrants would be able to continue to voluntarily provide Admin-C and Tech-C, but ICANN’s appeal points out that this is not true as EPAG is no longer requesting or collecting this data.
In ICANN’s estimation, the lower court declined to comment on the GDPR implications of its decision.
It says the appeals court, referred to in translation as the “Senate”, cannot avoid interpreting GDPR if it has any hope of ruling on the injunction request.
Given the lack of GDPR case law — the regulation has only been in effect for a few weeks — ICANN reckons the German court is obliged by GDPR itself to kick the can up to the ECJ.
It says: “If the Senate is therefore convinced that the outcome of this procedure depends on the interpretation of certain provisions of the GDPR, the Senate must refer these possible questions to the ECJ for a preliminary ruling”.
It adds that should a referral happen it should happen under the ECJ’s “expedited” procedures.
An ECJ ruling has been in ICANN’s sights for some time; late last year CEO Goran Marby was pointing out that a decision from the EU’s top court would probably be the only way full legal clarity on GDPR’s intersection with Whois could be obtained.
It should be pointed out of course that this case is limited to the data collection issue.
The far, far trickier issue of when this data should be released to people who believe they have a legitimate purpose to see it — think: trademark guys — isn’t even up for discussion in the courts.
It will be, of course. Give it time.
All of ICANN’s legal filings, in the original German and unofficial translation, can be found here.

Atallah encourages domainers to get involved in ICANN

ICANN Global Domains Division chief Akram Atallah today encouraged domain investors to participate more in the ICANN community.
“Domain investors’ voices need to be heard in ICANN,” he said during brief remarks opening NamesCon Europe here in Valencia this morning.
“Your voices are as important as everyone else’s and should be heard,” he said.
He noted to the largely European crowd here that ICANN has a public meeting coming up in Barcelona toward the end of the year.
The call came within the context of comments that focused almost exclusively on GDPR and Whois.
Atallah said that the absence of Whois would make it difficult to track down bad guys and harder for the average person to ensure that the information they get online comes from a reputable source.
“Not everything on the internet is true,” he said, to an faux-incredulous “WHAT?!?” from a member of the audience. “You need to know who is behind this information.”
He said that ICANN hopes to keep Whois as transparent as possible, and played up the fact that most community members are now in agreement that a tiered access system seems like the best way forward, which he called a “major shift from 12 months ago, when the community could not agree on anything”.
He added that now that the Article 29 Working Party has been replaced by the European Data Protection Board, it could help ICANN figure out how to proceed on GDPR compliance efforts.
“I think we’ll get more clarity,” he said.
Disclosure: I’m at NamesCon on my own dime, but with a complementary complemintary complimentary press pass.

US asks if it should take back control over ICANN

The US government has asked the public whether it should reverse its 2016 action to relinquish oversight of the domain name system root.
“Should the IANA Stewardship Transition be unwound? If yes, why and how? If not, why not?”
That’s the surprisingly direct question posed, among many others, in a notice of inquiry (pdf) issued yesterday by the National Telecommunications and Information Administration.
The inquiry “is seeking comments and recommendations from all interested stakeholders on its international internet policy priorities for 2018 and beyond”. The deadline for comments is July 2.
The IANA transition, which happened in September 2016, saw the NTIA remove itself from the minor part it played, alongside meatier roles for ICANN and Verisign, in the old triumvirate of DNS root overseers.
At the handover, ICANN baked many of its previous promises to the US government into its bylaws instead, and handed oversight of itself over to the so-called Empowered Community, made up of internet stakeholders of all stripes.
The fact that the question is being asked at all would have been surprising not too long ago, but new NTIA chief David Redl and Secretary of Commerce Wilbur Ross expressed their willingness to look into a reversal as recently as January.
Back then Redl told Congresspeople, in response to questions raised primarily by Senator Ted Cruz during his confirmation process:

I am not aware of any specific proposals to reverse the IANA transition, but I am interested in exploring ways to achieve this goal. To that end, if I am confirmed I will recommend to Secretary Ross that we begin the process by convening a panel of experts to investigate options for unwinding the transition.

Cruz had objected to the transition largely based on his stated (albeit mistaken or disingenuous) belief that it gave China, Iran and a plethora of bad guys control over Americans’ freedom of speech, something that has manifestly failed to materialize.
But in the meantime another big issue has arisen — GDPR, the EU’s General Data Protection Regulation — which is in the process of eroding access rights to Whois data, beloved of US law enforcement and intellectual property interests.
NTIA is known to be strongly in favor of retaining access to this data to the greatest extent possible.
The notice of inquiry does not mention Whois or GDPR directly but it does ask several arguably related questions:

A. What are the challenges to the free flow of information online?
B. Which foreign laws and policies restrict the free flow of information online? What is the impact on U.S. companies and users in general?
C. Have courts in other countries issued internet-related judgments that apply national laws to the global internet? What have been the practical effects on U.S. companies of such judgements? What have the effects been on users?

NTIA’s statement announcing the inquiry prominently says that the agency is “working on” items such as “protecting the availability of WHOIS information”.
It also says it “has been a strong advocate for the multistakeholder approach to Internet governance and policy development”.
While GPDR and Whois are plainly high-priority concerns for NTIA, it’s beyond my ken how reversing the IANA transition would help at all.
GDPR is not ICANN policy, after all. It’s a European Union law that applies to all companies doing business in Europe.
Even if the US were to fully nationalize ICANN tomorrow and rewrite Whois policy to mandate the death penalty for any contracted party that refused to openly publish full Whois records, that would not make GDPR go away, it would probably just kick off a privacy trade war or mean that all US contracted parties would have to stop doing business in Europe.
That sounds like an extreme scenario, but Trump.
The NTIA’s inquiry closes July 2, so if you think the transition was a terrible idea or a wonderful idea, this is where to comment.

Court denies ICANN’s GDPR injunction against Tucows

A German court has refused ICANN’s request for a GDPR-related injunction against Tucows’ local subsidiary EPAG, throwing a key prong of ICANN’s new Whois policy into chaos.
EPAG now appears to be free to stop collecting contact information for each domain’s administrative and technical contacts — the standard Admin-C and Tech-C fields.
The ruling may even leave the door open for registrars to delete this data from their existing Whois databases, a huge blow to ICANN’s Whois compliance strategy.
According to an ICANN-provided English translation of the ruling (pdf), the Bonn judges (whose names are redacted — another win for GDPR?) decided that the Admin-C and Tech-C records are unnecessary, because they can be (and usually are) the same person as the registrant.
The judges said that if the additional contact names were needed, it would have historically been a condition of registration that three separate people’s data was required.
They wrote that this “is proof that any data beyond the domain holder — different from him — was not previously necessary”.
“Against the background of the principle of data minimization, the Chamber is unable to see why further data sets are needed in addition to the main person responsible,” they wrote.
Data minimization is a core principle of GDPR, the General Data Protection Regulation, which came into force in the EU less than a week ago. Tucows and ICANN have different interpretations on how it should be implemented.
The judges said that the registrant’s contact information should be sufficient for any criminal or security-related investigations, which had been one of ICANN’s key claims.
They also said that ICANN’s attempt to compare Whois to public trademark databases was irrelevant, as no international treaties govern Whois.
If the ruling stands, it means registries and registrar in at least Germany could no longer have to collect Admin-C and Tech-C contacts.
Tucows had also planned to delete this data for its existing EPAG registrations, but had put its plan on hold ahead of the judge’s ruling.
The ruling also gives added weight to the part of ICANN’s registry and registrar agreements that require contracted parties to abide by local laws.
That’s at the expense of the new Temporary Policy governing Whois introduced two weeks ago, which still requires Admin-C and Tech-C data collection.
There was no word in ICANN’s statement on the ruling last night as to the possibility of appealing.
But the org seized on the fact that the ruling does not directly state that EPAG would be breaching GDPR rules by collecting the data. General counsel John Jeffrey is quoted as saying:

While ICANN appreciates the prompt attention the Court paid to this matter, the Court’s ruling today did not provide the clarity that ICANN was seeking when it initiated the injunction proceedings. ICANN is continuing to pursue the ongoing discussions with the European Commission, and WP29 [the Article 29 Working Party], to gain further clarification of the GDPR as it relates to the integrity of WHOIS services.

Tucows has yet to issue a statement on the decision.
It may not be the last time ICANN resorts to the courts in order to seek clarity on matters related to GDPR and its new Temporary Policy.

Million-euro Tucows GDPR lawsuit may not be ICANN’s last

ICANN has filed a lawsuit against a Tucows subsidiary in Germany in an effort to resolve a disagreement about how new European privacy law should be interpreted, and according to ICANN’s top lawyer it may not be the last.
The organization said late Friday that it is taking local registrar EPAG to court in Bonn, asking that the registrar be forced to continue collecting administrative and technical contact information for its Whois database.
According to an English translation of the motion (pdf), and to conversations DI had with ICANN general counsel John Jeffrey and Global Domains Division president Akram Atallah over the weekend, ICANN also wants an injunction preventing Tucows from deleting these fields from current Whois records.
At its core is a disagreement about how the new General Data Protection Regulation should be interpreted.
Tucows plans to continue collecting the registrant’s personal information, but it sees no reason why it should also collect the Admin-C and Tech-C data.
Policy director Graeme Bunton argues that in the vast majority of cases the three records are identical, and in the cases they are not, the registrar has no direct contractual relationship with the named individuals and therefore no business storing their data.
ICANN counters that Admin-C and Tech-C are vital when domain owners need to be contacted about issues such as transfers or cyber-attacks and that the public interest demands such records are kept.
Its new Temporary Policy — which is now a binding contractual commitment on all registries and registrars — requires all this data to be collected, but Tucows feels complying with the policy would force it to break European law.
“Strategically, we wanted to make sure we don’t let the Whois and the pubic interest get harmed in a way that can’t be repaired,” Atallah said.
“The injunction is to actually stop any registrar from not collecting all the data and therefore providing the opportunity for the multistakeholder model to work and come up with a long-term plan for Whois,” he said. “”We don’t want to have a gap.”
Jeffrey said that the suit was also necessary because ICANN has not received sufficient GDPR guidance from data protection authorities in the EU.
EPAG is not the only registrar planning to make the controversial changes to data collection. There are at least two others, at least one of which is based in Germany, according to Jeffrey and Atallah.
The German ccTLD registry, DENIC, is not under ICANN contract but has also said it will no longer collect Admin-C and Tech-C data.
They may have all taken their lead from the playbook (pdf) of German industry group eco, which has been telling ICANN since at least January that admin and tech contacts should no longer be collected under GDPR.
That said, Tucows chief Elliot Noss is a vocal privacy advocate, so I’m not sure how much leading was required. Tucows was also a co-developer (pdf) of the eco model.
The injunction application was filed the same day GDPR came into effect, after eleventh-hour talks between ICANN legal and Tucows leadership including chief legal officer Bret Fausett hit an impasse.
Tucows has agreed to freeze its plan to delete its existing Admin-C and Tech-C stored data, however.
The suit has a nominal million-euro value attached, but I’m convinced ICANN (despite its budget crunch) is not interested in the money here.
It’s my sense that this may not be the last time we see ICANN sue in order to bring clarity to GDPR.
Recently, Jeffrey said that ICANN would not tolerate contracted parties refusing to collect full Whois data, and also that it would not tolerate it when they decline to hand the data over to parties with legitimate interests.
The German lawsuit does not address this second category of non-compliance.
But it seems almost certain to me that intellectual lawyers are just days or weeks away from starting to file compliance tickets with ICANN when they are refused access to this data, which could lead to additional litigation.
“Whether it would result in a lawsuit is yet to be determined,” Jeffrey told DI yesterday. “The normal course would be a compliance action. If people aren’t able to gain access to information they believe that they have a legitimate right to access they will file compliance complaints. Those compliance complaints will be evaluated.”
“If it’s a systematic decision not to provide that access, that would violate the [Temporary Policy],” he said. “If they indicated it was because of their interpretation of the law, then it could result in us asking questions of the DPAs or going to court if that’s the only action available.”
The injunction application is a “one-sided filing”, which Jeffrey tells me is a feature of German law that means the court could issue a ruling without requiring EPAG/Tucows to appear in court or even formally respond.
The dispute therefore could be resolved rather quickly — this week even — by the court of first instance, Jeffrey said, or it could be bounced up to the European Court of Justice.
Given how new GDPR is, and considering the wider implications, the latter option seems like a real possibility.