ICANN restarts work on controversial Whois privacy rules

ICANN is to bring in new rules for Whois privacy and proxy services, the best part of a decade after they were first proposed to massive controversy.

It’s looking for volunteers to work with Org staff on implementing policy recommendations that in 2015 led to tens of thousands of people expressing outrage about the dangers, as they saw it, of their privacy being breached.

ICANN is putting together an Implementation Review Team to help implement the recommendations of the Privacy and Proxy Services Accreditation Issues Policy Development Process, known as PPSAI, which sought to bring privacy/proxy services under ICANN’s regulatory umbrella.

The recommendations were hugely controversial in their first draft, which in a minority statement expressed the view that people should be banned from using their domains commercially if they were using privacy services.

But the IRT will be tasked with implementing the final draft, which expunged the calls for such a ban.

The policy still calls for ICANN to run an accreditation system for privacy/proxy services in much the same way as it accredits registrars. It also lays out rules for how such services should gather registrant data and how to treat customer interactions.

But the recommendations are undeniably from a different era, thunk up before the EU’s General Data Protection Regulation made privacy-by-default essentially the industry standard for Whois records.

The PPSAI recommendations now interact with policies and practices that have been adopted in the intervening years, such as the recent Registration Data Policy and the Registration Data Request Service.

People willing to donate 10 to 20 hours a month to the new IRT can check out more details here.

It now takes TWO WEEKS to get a Whois record with RDRS

There’s been a shocking increase in the time it takes to get a Whois record disclosed under ICANN’s Registration Data Request Service, according to the latest monthly data.

It took on average 14.09 days to have a request for private Whois data approved using RDRS in April, more than double the previous high, recorded in February, of 6.92 days, the data shows. The average since the system launched at the end of November is 6.73 days.

The average time to have a request denied was 11.26 days, up from 6.17 days in March, the data also shows.

RDRS is a mechanism that allows people — largely intellectual property interests and law enforcement — to request unredacted domain ownership information. ICANN doesn’t handle the requests, it just forwards them to the responsible registrar.

It’s not obvious from the data why requests in April suddenly took so much longer to approve. Any number of reasons, from technical problems to a shift in the mix towards particularly sluggish registrars, could have thrown the average.

The percentage of requests that were approved was down very slightly compared to March, at 19.16% compared to 20.26%. Denied requests were up to 71.26% compared to 69.5% in March. Requests were largely denied because of data protection law or because the requester didn’t provide enough information.

Since RDRS launched five months ago, there have been 1,215 disclosure requests, 210 of which were approved. That works out to about 1.36 approved requests per day.

Registrar coverage improved a little in April, with three registrars newly listed and one (Sweden’s Ilait AB, which has about 6,000 domains) removed. The number of gTLD domains covered as a percentage remained flat at 57%.

ICANN has spent almost $2 million on RDRS to date. It’s a two-year pilot, and at some point it will have to be decided whether the expense is worth it.

Some registrars have already quit ICANN’s Whois experiment

ICANN’s two-year experiment in helping connect Whois users with registrars has grown its pool of participating registrars over the last few months, but it has lost a couple of not-insignificant companies along the way.

The Registration Data Request Service launched in November, promising to provide a hub for people to request the private data in Whois records, which is usually redacted. Monthly usage reports, first published in January, showed 72 registrars had joined the scheme at launch.

That number was up to 77, covering about 55% of all registered gTLD domain names, at the end of February, the latest report shows. Seven more registrars have signed up and two have dropped out.

The newbies include WordPress creator Automattic, which has 1.1 million names, PublicDomainRegistry, which has 4.4 million, Register.it, which has 666,000, and Turkiye’s METUnic, which has 235,000.

The two registrars quitting the project, apparently in January, are Combell (formerly Register.eu), which has 1.3 million domains, and Hong Kong’s Kouming.com, which has 57,000.

The latest data shows that RDRS returns a “registrar not supported” error 32.7% of the time.

The running total of requesters was up by 607 to 2937 in February, ICANN’s data shows. They filed 246 requests in the month for an RDRS total of 754 so far. Intellectual property owners were the main users, followed by law enforcement and security researchers.

There were 64 approved requests — where the registrar handed over the Whois data — to make a to-date total of 133. On 50 occasions requests were turned down because the registrar decided it could not turn over the data due to privacy law. These stats break down to 20% approval and 70% denial.

It took an average of 6.92 days to approve a given request — a steep incline from the 3.89 days in January — and 2.92 to deny one.

The full report, containing much more data, can be read as a PDF here.

Whois policy published without life-saving disclosure rule

ICANN has updated its Registration Data Policy, the rules that govern what data registries and registrars need to collect from registrants and when to publish or supply it through Whois lookups or disclosure requests.

When it becomes enforceable in August next year, the new RDP will make full-fat ICANN Whois policy compliant with EU privacy law for the first time since the General Data Protection Regulation came into effect in May 2018.

But the new policy, which replaces a functionally very similar temporary policy, is notable not only for the extraordinary amount of time it took to produce, but also for not containing a disputed requirement for registrars and registries to quickly turn over private Whois data when human life is at risk.

The policy dictates what contact information registrars must collect from their customers, what they must share with their registries, escrow agents and others, and what they must redact in the public Whois (or Registration Data Directory Services, as it will become known when Whois is retired next January).

It also says that registries and registrars must acknowledge private data disclosure requests no more than two business days after receipt and respond to the requests in full less than 30 calendar days after that, barring delays caused by “exceptional circumstances”.

But, due purely to ICANN community politicking, the policy for now omits previously considered language on “urgent” disclosure requests for use in “circumstances that pose an imminent threat to life, of serious bodily injury, to critical infrastructure, or of child exploitation”.

I’d like to think such circumstances are incredibly rare, but if there’s a situation where a Whois disclosure could help prevent a bomb going off at a major internet exchange, a trans rights activist being hounded into suicide, or a little kid getting raped on a livestream, the new ICANN policy does not account for that.

The version of the policy published in July last year (pdf) did include an urgent requests provision, requiring contracted parties to either turn over the data or tell the requester to get lost within 24 hours of receipt.

But it also contained a bunch of exceptions that could allow registrars to extend that deadline by up to three business days. When weekends and public holidays are taken into account, this could mean as much as a full calendar week to process an “urgent”, potentially life-saving request.

For that reason, the Governmental Advisory Committee wrote to ICANN (pdf) last August to ask it to revisit the policy language, chuck out the reference to “business” days, and stick to a 24-hour response window

The original Expedited Policy Development Process Working Group that came up with the policy recommendations had not specified how long registrars and registries should have to respond to urgent disclosure requests, punting that decision to the Implementation Review Team that drafted the final language.

An August 2022 draft (pdf) put out for public comment made the response window two business days, with a possible one-day extension, but this was reduced to 24 hours last year in what registrars describe as a “significant compromise” given the operational reality of responding to disclosure requests.

In August last year, the Registrars Stakeholder Group told ICANN (pdf) that its members “are committed to responding to Urgent requests in the most swift and expeditious manner possible” but said it objected to the GAC’s last-minute demands for the urgent disclosures policy to be rewritten.

From the registrars’ perspective, handling disclosure requests for personal data is not a simple ask. It’s a legal decision, balancing the privacy rights of the registrant with the rights of others to access that information.

Get it wrong, and you’re open to litigation and fines substantial enough to be expressed as a percentage of your revenue. And, money aside, who wants to be the guy who, for example, accidentally helps the Iranian morality police murder a bunch of schoolgirls for wearing the wrong type of hat?

But the argument between the registrars and the governments comes down to issues of ICANN process. Both the GAC and the RrSG claimed the urgent disclosures bunfight highlights deficiencies in ICANN multistakeholderism, but for different reasons.

ICANN’s response to this disagreement was to remove the urgent requests clauses from the policy altogether, in the hope that further talks can find a solution. Chair Tripti Sinha wrote to the RrSG and GAC a couple weeks ago to tell them:

the Board concluded that it is necessary to revisit Policy Recommendation 18 concerning urgent requests in the context of situations that pose an imminent threat to life, serious bodily harm, infrastructure, or child exploitation, and the manner in which such emergencies are currently handled. For this, we believe that consultation with the GNSO Council is required.

ICANN has essentially kicked the can, which was what the GAC had asked for. The RrSG wanted the July 2023 language (one-plus-three days) or August 2022 language (two-plus-one days) published in the final policy.

It’s stuff like this that makes one scratch one’s head, stroke one’s chin, and wonder whether ICANN really is fit for purpose.

There were 2,312 days between the day the European Commission first proposed the GDPR to the day it became effective in all EU member states.

But 2,590 days will have passed between the day the GNSO Council initiated the EPDP and the day the new Registration Data Policy will become effective on all contracted parties, next August.

The lumbering, then-28-state European Union was faster at passing policy than ICANN, even when ICANN was using an “expedited” process.

And what ICANN eventually came up with couldn’t even agree on ways to help tackle murder, economic catastrophes, and the rape of kids.

Most registrars are shunning ICANN’s new Whois system

Most of the largest domain registrars are not currently participating in ICANN’s new Registration Data Request Service, according to my research.

I used the RDRS tool to check domains managed by every accredited registrar that has over a million domains under management and discovered that at least 25 out of these 40 registrars do not currently support the service.

The number may be 26, but RDRS did not recognize any domains managed by Chinese registrar Ali Baba as valid, giving instead a “domain does not exist” error message, even for alibaba.com itself.

In total, the 25 registrars coming up blank look after over 63 million gTLD domains, about 28% of the total.

Some very recognizable brands are not in the system.

Squarespace Domains II, the new name for the old Google Domains, the fourth-largest registrar, is the largest company not participating. Together with its original accreditation, Squarespace Domains, they have over 10 million domains under management.

TurnCommerce, GMO, IONOS, NameSilo, PDR, Gname, Dynadot, Wix, OVH, Register.com, FastDomain, Name.com, Domain.com, Hostinger, Sav.com, Xin Net, West.cn, Cronon, Domain Robot, Automattic, DNSPod, and Cloudflare are also not in the system.

Oh, and neither is Markmonitor.

While I only checked 40 registrars, not the full 2,702 that were active in the July registry transaction reports, I would expect the level of support to decline the lower down the list you get, particularly as hundreds of accreditations have a trivial number of domains or are merely aliases for companies already known to not support RDRS.

It’s quite possible some of the registrars I’ve named here are planning to sign up and have just been slow to do so, but they’ve had plenty of time — ICANN has been onboarding registrars since September 20.

The level of support from the registrar industry will be critical to judging whether the RDRS project is deemed a success.

In a recent letter to the GNSO Council discussing “success criteria” for the program, ICANN chair Tripti Sinha wrote (pdf):

The Board agrees that the participation of a sufficient number of registrars with a sufficient number of domain name registrations under management will be important with respect to gathering data.

On the bright side, GoDaddy, Tucows and Namecheap are on board, and that represents about 90 million domains. GoDaddy alone accounts for 65 million, slightly more than the combined total of the 25 large registrars that are not participating.

RDRS is a system designed to simplify the process of requesting non-public Whois data by passing all such requests to the relevant registrars through a central hub.

Of course, it’s only useful if the registrars are actually in the system.

Whois disclosure system coming this year?

ICANN has approved the creation of a Whois Disclosure System, almost six years after Europe’s GDPR rules tore up the rule book on Whois access.

The system is likely to face a name change before going live, due to the fact that it does not guarantee, nor process, the disclosure of private Whois data.

The board of directors passed a resolution February 27, a month later than expected, “to develop and launch the WHOIS Disclosure System (System) as requested by the GNSO Council within 11 months from the date of this resolution.”

That’s two months longer than earlier anticipated, but we’re still looking potentially at a live system that people can sign up for and use a year from now.

The system is expected to be based on the Centralized Zone Data Service that many of us have been using to request and download gTLD zone files for the last decade. While not perfect, CZDS gets the job done and has improved over the years.

The technology will be adapted to create what essentially amounts to a ticketing system, allowing the likes of IP lawyers to request unredacted Whois records. The requests would then be forwarded to the relevant registrar.

It’s an incredibly trimmed-down version of what Whois users had been asking for. Participation is voluntary on both sides of the transaction, and registrars are under no new obligations to approve requests.

If nobody uses the system, it could be turned off. ICANN Org has only been directed to run it for “for up to two years”. ICANN will collect and publish usage data to figure out whether it’s worth the quite substantial number of hours and dollars that have already gone into its development.

The actual cost of development and operation had been pegged at $3.3 million, but the board’s resolution states that most of the cost will be existing staff and excess costs will come from the Supplemental Fund for Implementation of Community Recommendations (SFICR).

ICANN expects to approve Whois Disclosure System next month

ICANN could be offering a centralized system for requesting private domain registration data as early as a year from now, a mere five and a half years after GDPR ruined the global Whois system for many.

The Org recently alluded to its “board’s anticipated January 2023 vote to move forward in implementing the new system to streamline the intake and routing of requests for access to nonpublic gTLD registration data” in a blog post.

It has previously stated that it will take nine months to develop and roll out the system, along with a three-month “ramp-up period”, but that preparatory work may have already started.

The system will be based on CZDS, the service that currently allows people to request zone file data from registries, and cost $3.3 million to develop and run for its anticipated two-year trial period.

Don’t expect it to be called the Whois Disclosure System though. Community feedback has been pretty clear that “disclosure” is an inappropriate word because the system merely manages requests and does not actually disclose anything.

It’s also going to be voluntary for both requesters and registrars/registries for now.

The system was previously known as SSAD Lite, a cut-down version of the community-recommended System for Standardized Access and Disclosure, which ICANN estimated would have cost infinity dollars and take a century to implement.

Registrars CAN charge for Whois, ICANN grudgingly admits

ICANN is powerless to prevent registrars from charging for access to non-public Whois data, the Org has reluctantly admitted.

In a recent advisory, ICANN said it is “concerned” that registrars including Tucows have been charging fees to process requests for data that would otherwise be redacted in the free public Whois.

But it said there’s nothing in the Registrar Accreditation Agreement, specifically the Temporary Specification governing Whois in the post-GDPR world, that bans such services:

While the RAA explicitly requires access to public registration data directory services to be provided free of charge, the Temporary Specification does not specifically address the issue of whether or not a registrar may charge a fee for considering requests for access to redacted registration data.

So basic Whois results, with all the juicy info redacted, has to be free, but registrars can bill organizations who ask for the veil to be lifted. ICANN wrote:

ICANN org is concerned that registrars’ imposition of fees for consideration of requests for access to nonpublic gTLD registration data may pose an access barrier. Access to registration data serves the public interest and contributes to the security and stability of the Internet

The advisory calls out Tucows’ Tiered Access Compliance and Operations system, TACO, as the primary example of a registrar charging for data, but notes that others are too.

Not long after the advisory was published, Tucows posted an article in which it explained that the fees are necessary to cover the cost of the “thousands” of automated requests it has received in the last four years.

Charging fees for compliance with other forms of legal process is not uncommon in the industry, and the vast majority of requests for registration data (approximately 90%) continue to come from commercial litigation interests and relate to suspected intellectual property infringement.

Facebook, now Meta, was at first, and may still well be, a frequent bulk filer.

Tucows said that it “frequently” waives its fees upon request for “single-use requestors and private parties”.

Whois Disclosure System to cost up to $3.3 million, run for one year

ICANN has published its game plan for rolling out a Whois Disclosure System ahead of next week’s ICANN 75 public meeting in Kuala Lumpur.

The Org reckons the system will take nine months to build and will cost up to $3.3 million to develop and run for two years, although it might wind up getting shut down after just one year.

The Whois Disclosure System, previously known as SSAD Light, is a mechanism whereby anyone with an ICANN account — probably mainly IP lawyers in practice — can request unredacted private Whois data from registrars.

The system is to be built using retooled software from the current Centralized Zone Data Service, which acts as a hub for researchers who want to request zone files from gTLD registry operators.

ICANN’s design paper (pdf), which contains many mock-ups of the likely user interface, describes the new system like this:

Just as in CZDS, a requestor navigates to the WHOIS Disclosure System web page, logs into their ICANN Account, and is presented with a user experience much like the current CZDS. In this experience, requestors can see pending and past requests as well as metadata (timestamps, status, etc.) associated with those requests. For a requestor’s pending requests, they can see all the information related to that request.

Requests filed with the system will be routed to the relevant registrar via the Naming Services Portal, whereupon the registrar can choose how to deal with it. The system doesn’t change the fact that registrars have this discretion.

But the system will be voluntary for not only the requesters — who can still contact the registrar directly if they wish — but also the registrars. One can imagine smaller and frequently abused registrars won’t want the hassle.

The cost of this system will be $2.7 million in staffing costs, with $90,000 in external licensing costs and another $500,000 in contingency costs. Because ICANN has not budgeted for this, it will come from the Supplemental Fund for Implementation of Community Recommendations, which I believe currently has about $20 million in it.

This is far and away cheaper than the full-fat SSAD originally proposed by the GNSO, which ICANN in January estimated could cost up to $27 million to build over five years.

While cheaper, there are still substantial questions remaining about whether it will be popularly used, and whether it will be useful in getting private Whois data into the hands of the people who say they need it.

ICANN is saying that the Whois Disclosure System will run for one year “at which point the data sets collected will be analyzed and presented for further discussion between the GNSO Council and Board”.

The design paper will be discussed at multiple ICANN 75 sessions, starting this weekend.

Belgium slashes its ICANN funding in “mission creep” protest

DNS Belgium has cut its contribution to ICANN’s budget by two thirds, in protest at ICANN’s “mission creep” and its handling of GDPR.

The Belgian ccTLD registry informed ICANN CFO Xavier Calvez that it will only pay $25,000 this fiscal year, compared to the $75,000 it usually pays.

Registry general manager Philip Du Bois wrote (pdf) that “during recent years there has been a shift in focus which is not in the benefit of ccTLD’s”.

ICANN has become a large corporate structure with a tendency to suffer from “mission creep”… At the same time ICANN seems to fail in dealing in an appropriate way with important issues such as GDPR/privacy. It goes beyond our comprehension that ICANN and its officers don’t feel any reluctancy to “advise” European institutions and national governmental bodies to embrace “standards developed by the multi-stakeholder structures on international level” while at the same time it is obvious that ICANN itself has not yet mastered the implementation of important European legislation.

Based in the heart of the EU, DNS Belgium was a strong proponent of Whois privacy many years before the GDPR came into effect in 2018.

Calvez, in his reply (pdf), acknowledges that ccTLD contributions are voluntary, but seems to insinuate (call me a cynic) that the criticisms are hollow and that the registry might simply be trying to reduce its costs during an economic downturn:

We do appreciate any amount of contribution, and also that the ability for any ccTLD to contribute varies over time, including based on economic circumstances. We do understand that the reduction of DNS Belgium’s contribution from US$75,000 to US$25,000 represents a significant and meaningful reduction of costs for DNS Belgium.

DNS Belgium seems to be doing okay, based on its latest annual financial report. It’s not a huge company, but registrations and revenue have been growing at a slow and steady rate for the last several years.

All ccTLD contributions to ICANN are voluntary, but there are suggested donations based on how many domains a registry has under management, ranging from the $225,000 paid by the likes of the UK registry to the $500 paid by the likes of Pitcairn.

DNS Belgium, which manages about 1.7 million names, falls into the third-highest band, with a $75,000 suggested contribution.

ICANN is budgeting for funding of $152 million in its current FY23.