Amsterdam refuses to publish Whois records as GDPR row escalates

Two Dutch geo-gTLDs are refusing to provide public access to Whois records in what could be a sign of things to come for the whole industry under new European privacy law.
Both .amsterdam and .frl appear to be automatically applying privacy to registrant data and say they will only provide full Whois access to vetted individuals such as law enforcement officials.
ICANN has evidently slapped a breach notice on both registries, which are now complaining that the Whois provisions in their Registry Agreements are “null and void” under Dutch and European Union law.
FRLregistry and dotAmsterdam, based in the Netherlands, are the registries concerned. They’re basically under the same management and affiliated with the local registrar Mijndomein.
dotAmsterdam operates under the authority of the city government. .frl is an abbreviation of Friesland, a Dutch province.
Both companies’ official registry sites, which are virtually identical, do not offer links to Whois search. Instead, they offer a statement about their Whois privacy policy.
That policy states that Dutch and EU law “forbids that names, addresses, telephone numbers or e-mail addresses of Dutch private persons can be accessed and used freely over the internet by any person or organization”.
It goes on to state that any “private person” that registers a domain will have their private contact information replaced with a “privacy protected” message in Whois.
Legal entities such as companies do not count as “private persons”.
Under the standard ICANN Registry Agreement, all new gTLDs are obliged to provide public Whois access under section 2.5. According to correspondence from the lawyer for both .frl and .amsterdam, published by ICANN, the two registries have been told they are in breach.
It seems the breach notices have not yet escalated to the point at which ICANN publishes them on its web site. At least, they have not been published yet for some reason.
But the registries have lawyered up already, regardless.
A letter from Jetse Sprey of Versteeg Wigman Sprey to ICANN says that the registries are free to ignore section 2.5 of their RAs because it’s not compliant with the Dutch Data Protection Act and, perhaps more significantly, the EU General Data Protection Regulation.
The GDPR is perhaps the most pressing issue for ICANN at the moment.
It’s an EU law due to come into effect in May next year. It has the potential to completely rewrite the rules of Whois access for the entire industry, sidestepping the almost two decades of largely fruitless ICANN community discussions on the topic.
It covers any company that processes private data on EU citizens; breaching it can incur fines of up to €20 million or 4% of revenue, whichever is higher.
One of its key controversies is the idea that citizens should have the right to “consent” to their personal data being processed and that this consent cannot be “bundled” with access to the product or service on offer.
According to Sprey, because the Registry Agreement does not give registrants a way to register a domain without giving their consent to their Whois details being published, it violates the GDPR. Therefore, his clients are allowed to ignore that part of the RA.
These two gTLDs are the first I’m aware of to openly challenge ICANN so directly, but GDPR is a fiercely hot topic in the industry right now.
During a recent webinar, ICANN CEO Goran Marby expressed frustration that GDPR seems to have come about — under the watch of previous CEOs — without any input from the ICANN community, consideration in the EU legislative process of how it would affect Whois, or even any discussion within ICANN’s own Governmental Advisory Committee.
“We are seeing an increasing potential risk that the incoming GDPR regulation will mean a limited WHOIS system,” he said October 4. “We appreciate that for registers and registers, this regulation would impact how you will do your business going forward.”
ICANN has engaged EU legal experts and has reached out to data commissioners in the 28 EU member states for guidance, but Marby pointed out that full clarity on how GDPR affects the domain industry could be years away.
It seems possible there would have to be test cases, which could take five years or more, in affected EU states, he suggested.
ICANN is also engaging with the community in its attempt to figure out what to do about GDPR. One project has seen it attempt to gather Whois use cases from interested parties. Long-running community working groups are also looking at the issue.
But the domain industry has accused ICANN the organization of not doing enough fast enough.
Paul Diaz and Graeme Bunton, chairs of the Registries Stakeholder Group and Registrars Stakeholder Group respectively, have recently escalated the complaints over ICANN’s perceived inaction.
They told Marby in a letter that they need to have a solution in place in the next 60 days in order to give them time to implement it before the May 2018 GDPR deadline.
Complaining that ICANN is moving too slowly, the October 13 letter states:

The simple fact is that the requirements under GDPR and the requirements in our contracts with ICANN to collect, retain, display, and transfer personal data stand in conflict with each other.
…
GDPR presents a clear and present contractual compliance problem that must be resolved, regardless of whether new policy should be developed or existing policy adjusted. We simply cannot afford to wait any longer to start tackling this problem head-on.

For registries and registrars, the lack of clarity and the risk of breach notices are not the only problem. Many registrars make a bunch of cash out of privacy services; that may no longer be as viable a business if privacy for individuals is baked into the rules.
Other interests, such as the Intellectual Property Constituency (in favor of its own members’ continued access to Whois) and non-commercial users (in favor of a fundamental right to privacy) are also complaining that their voices are not being heard clearly enough.
The GDPR issue is likely to be one of the liveliest sources of discussion at ICANN 60, the public meeting that kicks off in Abu Dhabi this weekend.
UPDATE: This post was updated October 25 to add a sentence clarifying that companies are not “private persons”.

13 Comments Tagged: .amsterdam, .frl, abu dhabi, dotAmsterdam, FRLregistry, gdrp, general data protection regulation, ICANN, icann 60, privacy, rrsg, rysg, whois

This is who won the .inc, .llc and .llp gTLD auctions

The winners of the auctions to run the gTLD registries for company identifiers .inc, .llc and .llp have emerged due to ICANN application withdrawals.
All three contested gTLDs had been held up for years by appeals to ICANN by Dot Registry — an applicant with the support of US states attorneys general — but went to private auction in September after the company gave up its protests for reasons its CEO doesn’t so far want to talk about.
The only auction won by Dot Registry was .llp. That stands for Limited Liability Partnership, a legal construct most often used by law firms in the US and probably the least frequently used company identifier of the three.
Google was the applicant with the most cash in all three auctions, but it declined to win any of them.
.inc seems to have been won by a Hong Kong company called GTLD Limited, run by DotAsia CEO Edmon Chong. DotAsia runs .asia, the gTLD granted by ICANN in the 2003 application round.
My understanding is that the winning bid for .inc was over $15 million.
If that’s correct, my guess is that the quickest, easiest way to make that kind of money back would be to build a business model around defensive registrations at high prices, along the lines of .sucks or .feedback.
My feedback would be that that business model would suck, so I hope I’m wrong.
There were 11 original applicants for .inc, but two companies withdrew their applications years ago.
Dot Registry, Uniregisty, Afilias, GMO, MMX, Nu Dot Co, Google and Donuts stuck around for the auction but have all now withdrawn their applications, meaning they all likely shared in the lovely big prize fund.
MMX gained $2.4 million by losing the .inc and .llc auctions, according to a recent disclosure.
.llc, a US company nomenclature with more potential customers of lower net worth, went to Afilias.
Dot Registry, MMX, Donuts, LLC Registry, Top Level Design, myLLC and Google were also in the .llc auction and have since withdrawn their applications.

2 Comments Tagged: .inc, .llc, .llp, afilias, auctions, donuts, dot registry, dotasia, gmo, google, ICANN, mmx, new gTLDs, nu dot co, uniregisty

Eight more gTLDs get Chinese licenses

Radix and MMX have had four new gTLDs each approved for use in China.
MMX has had .work, .law, .beer and .购物 (Chinese for “shopping”) approved by the Ministry of Industry and Information Technology.
Radix gained approval for .fun, .online, .store and .tech.
The approvals mean that Chinese customers of Chinese registrars will be able to actually use domains in these TLDs rather than just registering them and leaving them barren.
It also means the respective registries have to apply more stringent controls on Chinese registrants.
They’re the first new gTLDs to get the nod from MIIT since April.
Only a couple dozen Latin-script new gTLDs have been given regulatory approval to operate fully in China.
MMX’s biggest success story to date, .vip, is almost entirely beholden to the Chinese market. Before today, it was also the only gTLD in its portfolio to pass the MIIT test.
The company said in a statement it has another four strings going through the approval process.
Radix already had .site on sale in China with government approval.

2 Comments Tagged: .beer, .fun, .law, .online, .store, .tech, .work, china, miit, mmx, radix, 购物

One in three women say they have seen sexism at ICANN

Almost a third of female members of the ICANN community say they have witnessed sexism in the community, according to the results of a recent survey.
Asked “Have you ever experienced or witnessed what you perceive to be sexism or gender bias within the ICANN community?”, 30% of women respondents said “Yes”.
Only 17% of men answered in the affirmative. Overall, 75% of respondents said they had not seen such biases in action.
The broad survey into gender balance at ICANN was carried out over a month in June and July with a web-based tool and got 584 responses.
Participants were self-selecting, and there were slightly more female respondents than male (going against the grain of usual participation data), so the results should probably not be considered completely scientific.
The survey did not offer its own definition of sexism, so respondents were able to use their own judgement.
Of those who said they’d seen sexism in the community, most said they’d seen it at ICANN’s regular public meetings. Over a third said they’d witnessed it on mailing lists.
The older the participant, the more likely it was that they had seen behavior they considered sexist.
ICANN suggests that this could be because behaviors have changed as ICANN has matured, or that younger people have different definitions of sexism than their older peers.
Of those who said they had witnessed sexism, only four people chose to report it through ICANN channels such as the Ombudsman. Three of those people were men.
Almost half said they “chose” not to report the behavior, while 41% said they were unsure how to go about reporting it.
Some people who chose to add additional color to their responses said that they had only heard about the reportable incident second-hand.
The survey also found that almost 60% of respondents believe that there are barriers to participating in the ICANN community.
Those people were given the opportunity to rank factors that could act as barriers. Cost came out in a strong lead, but gender was found to be just as much a barrier as language.
That may be not so much a critique of the community itself, but rather of the backwards attitudes to women in some of the countries in which ICANN hosts its meetings.
Only 9% of women respondents said they have personally experienced a gender-related barrier to participation. Cost, lack of time, knowledge and geography all came out ahead.
When it came to solutions, the survey found that almost three quarters of respondents supported voluntary targets to promote gender balance in the community.
However, fewer than half of respondents — still a rather high 41% — said there should be “mandatory” quotas of women.
Unsurprisingly, support for affirmative action along mandatory lines was much higher among women than men, and much higher among the younger crowd than the old-timers.
The full report and a rather pretty infographic can be downloaded in the UN language of your choosing from here.

3 Comments Tagged: gender, ICANN, sexism

Double-charging claims as registries ramp up new gTLD refund demands

Registry operators have stepped up demands for ICANN to dip into its $100 million new gTLD cash pile to temporarily lower their “burdensome” accreditation fees.
A new missive from the Registries Stakeholder Group to ICANN this week also introduces a remarkable claim that ICANN may have “double charged” new gTLD applications to the tune of potentially about $6 million.
The RySG wants ICANN to reduce the quarterly fixed fees new gTLD registries must pay by 75% from the current $6,250, for a year, at a cost to ICANN of $16.87 million.
ICANN still has roughly $96 million in leftover money from the $185,000 per-TLD application fees paid in 2012, roughly a third of which had been earmarked for unexpected expenses.
When Global Domains Division president Akram Atallah refused this request in August, he listed some of the previously unexpected items ICANN has had to pay for related to the program, one of which was “implementation of the Trademark Clearinghouse”.
But in last week’s letter (pdf), the RySG points out that each registry was already billed an additional $5,000 fee specifically to set up the TMCH.

Your letter states that registry operators knew about the fee structure from the start and implies that changes of circumstance should be irrelevant. The TMCH charge, however, was not detailed in the applicant guidebook. ICANN added it on its own after all applications were accepted and without community input. Therefore, ICANN is very much in a position to refund registry operators for this overcharge, and we request that ICANN do so. Essentially, you would be refunding the amounts we paid with our own application fees, which should have been used to set up the TMCH in the first place.

These additional fees could have easily topped $6 million, given that there are over 1,200 live new gTLDs.
Was this a case of double-charging, as the RySG says?
My gut feeling is that Atallah probably just forgot about the extra TMCH fee and misspoke in his August letter. The alternative would be a significant accounting balls-up that would need rectifying.
RySG has asked ICANN for a “detailed accounting” of its new gTLD program expenses to date. If produced, that could clear up any confusion.
Group chair Paul Diaz, who signed the letter, has also asked for a meeting with Atallah at the Abu Dhabi public meeting later this month, to discuss the issue.
The letter also accuses ICANN of costing applicants lost revenue by introducing policies such as the ban on two-letter domains, increased trademark protections, and other government-requested restrictions that were introduced after application fees had already been paid.
The tone of the letter is polite, but seems to mask an underlying resentment among registries that ICANN has not been giving them a fair chance to grow their businesses.
UPDATE: This story was updated October 12 to correct the estimate of the total amount of TMCH setup fees collected.

4 Comments Tagged: fees, gac, ICANN, new gTLDs, rebate, rysg, tmch

Who should have rights to direct .au names?

Australian ccTLD registry auDA wants to know what you think about its plans to open up .au to direct second-level domain registrations.
It’s no longer a question of if the change should happen, but how it should be implemented.
A public consultation launched yesterday poses a series of questions about issues such as grandfathering, trademark rights and banning certain strings from registration.
It’s already been decided that existing third-level .au registrants should get first dibs on the matching second-level, but auDA has yet to decide what the eligibility cut-off date should be and for how long the names should be reserved before being released for registration by others.
The cut-off date is important because auDA has already seen some data suggesting possible domain investor gaming.
There were 193,645 strings that were registered as third-level domains in two zones at April 18, 2016, when the direct registration policy was announced, but that had risen to 255,909 as of September 1 this year.
That could be indicative of speculators obtaining low-value domains in .net.au or .org.au in the hope of beating the matching .com.au registrant to the possibly more valuable direct second-level .au domain.
If the April 2016 date is used, up to 14% of .au registrations will be subject to competing claims. The data shows that 90% of the conflicts are between .net.au and .com.au domains.
auDA has declined to draw any conclusions about gaming, however, saying that many of the conflicts could be defensive registrations made by the same registrant.
Where there are conflicts, a number of solutions have been posed. Among them: the longest continuous registration, priority for .com.au registrants, auction or lottery.
The consultation paper spends little time discussing the rights of trademark owners, something submissions from the IP lobby will no doubt seek to rectify.
Many of the questions auDA is posing are similar to those posed by the likes of .uk’s Nominet in previous ccTLD consultations.
There’s an additional wrinkle in the .au system as many state government and educational entities are required to register fourth-level names. So auDA wants to know what kind of rights these guys should have too.
The consultation is open until November 10 and all the relevant information can be found here.

3 Comments Tagged: .au, auda, second-level

Election season at ICANN

Two significant votes are coming up soon in the ICANN community, with the GNSO Council looking for a new chair and the ccNSO ready to select a new appointee for the ICANN board of directors.
The ccNSO election will see an actual contest for what is believed to be the first time, with at least two candidates fighting it out.
The GNSO vote is rather less exciting, with only one candidate running unopposed.
It seems Heather Forrest, an intellectual property lawyer, occasional new gTLD consultant, and professor at the University of Tasmania, will replace GoDaddy VP of policy James Bladel as Council chair a month from now.
Forrest, currently a vice-chair, was nominated by the Non-Contracted Parties House.
The Contracted Parties House (registries and registrars), evidently fine with Forrest taking over, decided not to field a candidate, so the November 1 vote will be a formality.
In the ccNSO world, the country-codes are electing somebody to take over from Mike Silber on the ICANN board, a rather more powerful position, when his term ends a year from now.
Nominations don’t close until a week from now, but so far there are two candidates: Nigel Roberts and Pierre Ouedraogo.
Roberts, nominated for the job by Puerto Rico, runs a collection of ccTLDs for the British Channel Islands.
Ouedraogo is from Burkina Faso but does not work for its ccTLD. He is a director of the Francophone Institute for Information and New Technologies. He was nominated by Kenya.
Both men are long-time participants in ICANN and the ccNSO.
Roberts, who currently sits on the ccNSO Council, tells me he believes it’s the first time there’s been a contested election for a ccNSO-appointed ICANN board seat since the current system of elections started in 2003.
Silber has been in the job for eight years and is term-limited so cannot stand again. The other ccNSO appointee, Chris Disspain, will occupy the other seat for another two years.

1 Comment Tagged: ccnso, election, gnso, ICANN

Nine registries fighting for .au contract

Nine domain name companies are battling it out for the right to run Australia’s .au ccTLD.
That’s according to auDA, the .au registry, providing an update on the latest stage of its “registry transformation” project today.
A decision on which company to select could be made as soon as a month from now, though the process does seem to be running a week behind schedule due to contenders asking for more time to write their tenders.
One company that will certainly have applied for the job is incumbent Neustar, which has been running .au for the last 15 years (through its relatively AusRegistry acquisition).
Having earlier indicated that it was looking for somebody to build an in-house registry, auDA later clarified (or U-turned) that it wanted to stick with an outsourced back-end provider.
The apparent decision to bring the service in-house came in for some criticism from some auDA members, which waned when it emerged outsourcing was the only solution on the table.
There are about 3.1 million .au domains today, and the back-end gets roughly $5 a year (USD) per name.

1 Comment Tagged: .au, auda, rfp

Telco billed $2.7 million for failing to renew domain

A US telecommunications provider has agreed to pay $2.7 million after an emergency service went offline because it forgot to renew a domain name.
According to the Federal Communications Commission, Utah-based Sorenson Communications saw its “video relay service” go offline for two days in June 2016 after a domain was not renewed.
The service is basically a 911 emergency calls replaced designed for people with hearing or speech problems.
The settlement (pdf) describes the scenario like this:

Sorenson.com is a domain name Sorenson uses to provide access to SVRS. On the morning of June 6, 2016, Sorenson experienced a VRS Service Interruption that resulted from a preventable, internal operational failure.10 This failure led the domain registration for Sorenson.com to expire and be deactivated. After the deactivation occurred and before Sorenson could correct the situation, some Internet Service Providers (ISPs) updated their records to reflect that the domain was expired. If a user’s ISP updated its records while the domain was shown as expired, that user could not make or receive calls routed through Sorenson.com — including VRS, 911, Dial-Around, and Point-to-Point calls — during at least part of the outage.
Upon discovery of the VRS Service Interruption, Sorenson took immediate steps to correct the problem and notify callers. Once the domain name was reactivated, each caller’s ISP had to take certain steps to ensure that calls were routed through Sorenson.com. To expedite this process, Sorenson reached out to multiple large ISPs, such as Verizon and Comcast, and posted information about the VRS Service Interruption on its website11 and social media outlets. The VRS Service Interruption continued for some callers through the morning of June 8, 2016.

The $2.7 million charge is a repayment of a reimbursement of the same amount paid out by the nation Telecommunications Relay Service Fund.
Sorenson has agreed to pay a more modest $252,000 in formal penalties to the FCC for its indiscretion.
Still, as domain renewal fumbles go, it’s got to be one of the biggest facepalms we’ve seen for a while.

2 Comments Tagged: fcc, renewal, sorenson

In harsh tones, ccNSO rejects NomCom appointee

ICANN’s Country Code Names Supporting Organization has rejected the appointment to its Council of a Canadian registry director.
Saying NomCom ignored long-standing guidance to avoid appointing registry employees, the ccNSO Council has said the recent naming of Marita Moll to the role is “unacceptable”.
Moll will have to choose between sitting on the Council and being a director of .ca registry CIRA, the Council said in a letter to NomCom and the ICANN board.
Three of the Council’s 18 voting members are selected by NomCom. The rest are elected from ccTLD registries, three from each of ICANN’s five geographic regions.
To maintain balance, and promote independent views, the Council told NomCom most recently back in 2012 that it should refrain from appointing people connected to ccTLD registries.
The new Council letter (pdf) reads:

Council’s view (none dissenting) is that your Committee’s proposed selection directly contravenes this requirement, notwithstanding the clear and explicit assurance we received in 2012 from the then Chair of Nominating Committee that the Committee would be “avoiding any member already belonging to the ccTLD management participating in the ccNSO”.

The situation is exacerbated by the fact that CIRA already has representation on the Council in the form of CEO Byron Holland.
The letter concludes that the conflict is “irreconcilable” and the appointment “unacceptable”.
As the ccNSO does not appear to have refusal powers on NomCom appointees, it will presumably be up to Moll to decline the appointment.

3 Comments Tagged: ccnso, cctlds, cira, ICANN, nomcom