Three reasons ICANN could swing the GDPR ban hammer on day one

While ICANN reckons it will act “reasonably” when it comes to enforcing compliance with its incoming GDPR emergency policy, there are some things it simply will not tolerate.
The policy expected to be approved tomorrow and immediately incorporated by reference into registry and registrar contracts, is a little light on expected implementation timetables, so this week ICANN has been pressured for clarity.
Will Compliance start firing off breach notices on May 26, the day after GDPR comes into effect, if the industry has not immediately implemented every aspect of the new policy?
Attendees at the Global Domains Division Summit in Vancouver managed to get some answers out of general counsel John Jeffrey at a session yesterday.
First off, if you’re a registrar planning to stop collecting registrants’ personal information for Whois, ICANN will not be happy, and you could be looking at a Compliance ticket.
Jeffrey said:

We don’t want any of the contracted parties to stop collecting the data. ICANN is confident that you can continue to collect the data. We will stand in front of you on it, if we can. Do not stop collecting the data. We believe we have a very strong, important point. We hear from the governments that were involved in passing this legislation that it’s important it continues to be collected.

Second, you have to have a mechanism in place for people with “legitimate purposes” to access thick Whois records that contain all the juicy personal information.
Jeffrey said:

We also believe it’s important there’s a need to continue to display information that will be behind that second tier. And we can demonstrate the need to do that as well. This is really important.

And if there was any doubt remaining, he added:

We will enforce on the temporary spec, if it’s approved, if you stop collecting data, or if you don’t provide any mechanism to allow access to it. It’s a very serious concern.

The problem right now is that the Temporary Policy (pdf), still in draft, doesn’t have a whole heck of lot of detail about who should be allowed such access and the mechanisms to enable it.
It says:

Personal Data included in Registration Data may be Processed on the basis of a legitimate interest not overridden by the fundamental rights and freedoms of individuals whose Personal Data is included in Registration Data

It goes on to list circumstances where access may be given and types of parties that may need access, but it seems to me to still give registries and registrars quite a lot of responsibility to decide how to balance privacy rights and the “legitimate” data requests.
Those two scenarios — not collecting data and not making it available to those who need it — seem to be the big two zero tolerance areas for ICANN.
Other issues, such as replacing the registrant’s email address in the thin Whois output, also appear to be a pressing concern.
Jeffrey said, noting that providing a way to contact registrants is important for myriad reasons, including UDRP:

Creating the anonymized emails or web forms is another really important aspect but we understand some won’t be able to have that in place immediately.

How long after GDPR Day ICANN starts swinging the ban hammer over the email issue seems to be something ICANN is still thinking about.
That said, Jeffrey said that the organization intends to act “as reasonably as possible”.

1 Comment Tagged: compliance, gdpr, ICANN, privacy, whois

New gTLD registries get $6 million refund

ICANN has offered new gTLD registries refunds totaling over $6 million after allegedly double-charging them for access to the Trademark Clearinghouse.
At the weekend, its board of directors resolved:

to provide a refund of $5,000, as soon as practicable, to the contracted registries or registry operators (including those that have terminated their contracts or whose TLD delegation has been revoked) that have paid to ICANN the one-time RPM access fee

The five grand fee was levied on each new gTLD as a way of funding the TMCH, which handles trademark validation for sunrise periods and other rights protection mechanisms.
But registries pointed out last October that this kind of thing was precisely what their original $185,000 applications fees were meant to cover.
The Registries Stakeholder Group said back then:

All other systems and programs related to the New gTLD Program were funded from application fees. The TMCH should have been no different and there was no reason to “double-charge” registries for this one piece of the program.

Eight months later, ICANN seems to have reluctantly agreed.
It appears that the refunds — which given over 1,200 TLDs would come to over $6 million in total — will be paid from the roughly $80 million in leftover application fees, rather than ICANN’s tightening operational budget.
While $5,000 isn’t life-changing money, it adds up to a substantial chunk of change for large portfolio registries such as Donuts, which stands to receive roughly $1.5 million.

Comment Tagged: donuts, ICANN, new gTLDs, refund, tmch, trademark clearinghouse

Cute abruptly quits PIR

Brian Cute unexpectedly resigned as CEO of Public Interest Registry late last week. No reason was given for his departure.
In a May 10 press release, the .org registry said that he’d left May 7.
He’s been replaced temporarily by board member Jay Daley until a permanent replacement can be found.
I asked a PIR spokesperson the reasons for the resignation and was told yesterday: “Brian has chosen to move on to pursue new challenges.”
Hmm.
Cute, a Verisign and Afilias alum, had been with PIR for seven years.

Comment Tagged: .org, pir, public interest registry

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.

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

Whois working group imploding in GDPR’s wake

An ICANN working group devoted to Whois policy is looking increasingly dead after being trumped by incoming European Union privacy law.
Registration Data Services PDP working group chair Chuck Gomes threw in the towel late last week, resigning from the group shortly after cancelling proposed face-to-face meetings scheduled for the Panama ICANN meeting in June.
That followed his announcement last month that the WG’s teleconferences were to be put on hold while ICANN works out how to respond to the General Data Protection Regulation, which comes into effect May 25, 11 days from now.
The WG had been working on ICANN’s future Whois policy since November 2015 but faced the usual impasses that occur whenever the various sides of the ICANN community face off over privacy.
Gomes, a former Versign executive who retired almost a year ago but stuck around to chair the RDS group, said he’d originally expected its work to wrap up in 2017.
Now, with GDPR rendering much of the discussions moot, there’s a feeling among some WG volunteers that they’ve been wasting their time.
ICANN’s response to GDPR is expected to be an emergency, top-down policy, written by staff and approved by the board, that would stay in place for a year.
The GNSO would then have a year to rally the community, under its own emergency procedures, to make formal policy to replace it for the long term.
There’s an open question about whether the RDS WG could be re-purposed to take on this task, but it’s my sense it’s more likely that a new group would be formed.
It may prove more challenging to recruit volunteers to such a group given the experiences of the RDS crowd.
Gomes, a long-time ICANN veteran and former GNSO Council chair, plans to spend more time travelling around in his RV with his wife. We wish them well.

3 Comments Tagged: gdpr, gnso, ICANN, privacy, rds, whois

Have your say on single-character .com domains

ICANN wants your opinion on its plan to allow Verisign to auction off o.com, with a potential impact on the future release of other single-character .com domain names.
The organization has published a proposed amendment to the .com registry contract and opened it for public comment.
The changes would enable Verisign to sell o.com, while keeping all other currently unallocated single-character names on its reserved list.
The company would not be able to benefit financially from the auction beyond its standard $7.85 reg fee — all funds would be held by an independent third-party entity and distributed to undisclosed non-profit causes.
The arrangement would also see the buyer pay a premium renewal fee of 5% of the initial outlay, doubling the purchase price over the course of 25 years.
They would not be able to resell the domain without selling the registrant company itself.
It’s a pretty convoluted system being proposed, given that there may well end up only being one bidder.
Overstock.com, the online retailer, has been pressuring ICANN and Verisign to release o.com for well over a decade, and the proposed auction seems to be a way to finally shut it up.
The company has a US trademark on O.com, so any other bidder for the name would probably be buying themselves a lawsuit.
The proposed auction system does not address trademark issues — there’s no sunrise period of trademark claims period.
One party already known to be upset about lack of rights protection is First Place Internet, a search engine company that has a US trademark on the number 1.
It told ICANN (pdf) back in January that the o.com deal would “set a dangerous precedent” for future single-character name releases.
The ICANN public comment period, which comes after ICANN received the all-clear from US competition regulators, closes June 20.
As a matter of disclosure, several years ago I briefly acted as a consultant to a third party in support of the Verisign and Overstock positions, but I have no current interest in the situation one way or the other.

3 Comments Tagged: .com, auction, first place internet, ICANN, o.com, overstock, scdn, single-character, trademarks, verisign

NamesCon dumps the Trop, eyeing beaches for 2020

GoDaddy-owned annual domain industry conference NamesCon has decided to ditch Las Vegas after its 2019 event.
The show is now looking for ideas for a new location close to a beach, according to a post on its web site.
The January event next year will be held at the Tropicana hotel on the Vegas strip, for the sixth year running, but NamesCon said:

if you have any city/venue suggestions you’d like to throw in the hat for NamesCon Global 2020, send them our way! Here’s a hint to steer you in the right direction: we’re looking to be leaving Las Vegas, and we’d love to sink our feet into a sandy beach somewhere…

The current industry thinking is either Florida or California.
The change comes following feedback from attendees at this year’s show, who seem to think the Trop is a little pokey (it is) with crappy food options (also true, particularly if you’re a picky eater like me).
On the other hand, the hotel is also cheap as chips, so NamesCon is looking for somewhere new that is just as affordable for 2020 and beyond.
NamesCon is promising to “send ourselves off in style” at the 2019 show, which runs January 27 to 30.
As a matter of disclosure, I’ve agreed to moderate a panel at sister event NamesCon Europe in Spain next month. I’m not being compensated beyond a complementary media pass.

6 Comments Tagged: namescon

CentralNic now managing failing .fan and .fans

CentralNic appears to be acting as a caretaker for the failing new gTLDs .fan and .fans.
IANA records show that a company lawyer took over as administrative contact for the pair late last week.
Asiamix Digital, the original registry, is still listed as the sponsor for both, and its ICANN registry agreement does not appear to have been reassigned.
It does not appear to be an acquisition. I hear Asiamix is basically using CentralNic’s TLD management service, as it struggles to remain alive.
CentralNic already acts as the back-end registry for both TLDs.
ICANN hit Asiamix with a breach notice for tens of thousands of dollars of unpaid fees a month ago, terminating its affiliated registrar for the same reasons around the same time.
The registry had attempted to auction off the strings a couple of years ago, unsuccessfully.
While technically based in Hong Kong, ICANN has been sending Asiamix’s compliance notices to an address in Milan, Italy.
All of Asiamix’s official web sites still appear to be non-functional. I bought the .net address listed in its IANA records to make a silly point a month ago and the equivalent .com has since expired too.
.fans has about 1,400 names in its zone file right now, while .fan never actually launched.

Comment Tagged: .fan, .fans, asiamix, breach, centralnic, compliance, new gTLDs

CIRA has a record year for regs

Canadian ccTLD registry CIRA says its fiscal 2018 was its best year yet for new .ca registrations.
The company today said it registered 537,941 names in the year to the end of March.
Its previous record, from its FY12, was 511,900.
Its current total domains under management was 2,736,980, an all-time high, the company said in a press release.
CIRA has a Canadians-only reg policy, which reduces the impact of foreign speculation.

3 Comments Tagged: .ca, cira

MMX rejected three takeover bids before buying .xxx

MMX talked to three other domain name companies about potentially selling itself before deciding instead to go on the offensive, picking up ICM Registry for about $41 million.
The company came out of a year-long strategic review on Friday with the shock news that it had agreed to buy the .xxx, .adult, .porn and .sex registry, for $10 million cash and about $31 million in stock.
CEO Toby Hall told DI today that informal talks about MMX being sold or merged via reverse takeover had gone on with numerous companies over the last 11 months, but that they only proceeded to formal negotiations in three cases.
Hall said he’d been chatting to ICM president and majority owner Stuart Lawley about a possible combination for over two years.
ICM itself talked to four potential buyers before going with MMX’s offer, according to ICM.
Lawley, who’s quitting the company, will become MMX’s largest shareholder following the deal, with about 15% of the company’s shares. Five other senior managers, as well as ICM investor and back-end provider Afilias, will also get stock.
Combined, ICM-related entities will own roughly a quarter of MMX after the deal closes, Hall said.
ICM, with its high-price domains and pre-2012 early-mover advantage, is the much more profitable company.
It had sales of $7.3 million and net income of $3.5 million in 2017, on approximately 100,000 registrations.
Compared to MMX, that’s about the same amount of profit on about half the revenue. It just reported 2017 profit of $3.8 million on revenue of $14.3 million.
There’s doesn’t seem to be much need or desire to start swinging the cost-cutting axe at ICM, in other words. Jobs appear safe.
“This isn’t a business in any way that is in need of restructuring,” Hall said.
He added that he has no plans to ditch Afilias as back-end registry provider for the four gTLDs. MMX’s default back-end for the years since it ditched its self-hosted infrastructure has been Nominet.
The deal reduces MMX’s exposure to the volatile Chinese market, where its .vip TLD has proved popular, accounting for over half of the registry’s domains under management.
It also gives MMX ownership of ICM’s potentially lucrative portfolio of reserved premium names.
There are over 9,700 of these, with a combined buy-now price of just shy of $135 million.
I asked Hall whether he had any plans to get these names sold. He laughed, said “the answer is yes”, and declined to elaborate.
ICM currently has a sales staff of three people, he said.
“It’s a small team, but their track record is exceptional,” he said.
The company’s record, I believe, is sex.xxx, which sold for $3 million. It has many six-figure sales on record. Premiums renew at standard reg fee, around $60.
With the ICM deal, MMX has recast itself after a year of uncertainty as an acquirer rather than an acquisition target.
While many observers — including yours truly — had assumed a sale or merger were on the cards, MMX has gone the other route instead.
It’s secured a $3 million line of credit from its current largest shareholder, London and Capital Asset Management Ltd, “to support future innovation and acquisition orientated activity”.
That’s not a hell of a lot of money to run around snapping up rival gTLDs, but Hall said that it showed that investors are supportive of MMX’s new strategy.
So does this mean MMX is going to start devouring failing gTLDs for peanuts? Not necessarily, but Hall wouldn’t rule anything out.
“Our long-term strategy is ultimately based around being an annuity-based business,” he said. He’s looking at companies with a “strong recurring revenue model”.
About 78% of ICM’s revenue last year came from domain renewals. The remainder was premium sales. For MMX, renewal revenue doubled to $4.8 million in 2017, but that’s still only a third of its overall revenue (though MMX is of course a less-mature business).
So while Hall refused to rule out looking at buying up “struggling” gTLDs, I get the impression he’s not particularly interested in taking risks on unproven strings.
“You can never say never to any opportunity,” he said. “If we come across and asset and for whatever reason we believe we can monetize it, it could become an acquisition target.”
The acquisition is dependent on ICANN approving the handover of registry contracts, something that doesn’t usually present a problem in this kind of M&A.

1 Comment Tagged: .adult, .sex, acquisition, afilias, earnings, financials, icm registry, mmx, new gTLDs, porn, premiums, xxx