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Registrars CAN charge for Whois, ICANN grudgingly admits

Kevin Murphy, December 1, 2022, Domain Registrars

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

Kevin Murphy, September 13, 2022, Domain Policy

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

Kevin Murphy, August 12, 2022, Domain Policy

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.

Feds warn of Covid risk from “dark” Whois

Kevin Murphy, July 19, 2022, Domain Policy

The US Food and Drug Administration has escalated its beef with ICANN, warning that inaccessible Whois data is making it harder to tackle bogus Covid-19 “cures” and the country’s opioid crisis.

Catherine Hermsen from the FDA’s Office of Criminal Investigations wrote to ICANN CEO Göran Marby last week to complain that some registrars do not adequately respond to abuse complaints and that ICANN ignores follow-up complaints from government agencies.

She doubled down on the FDA’s previous complaint that ICANN’s inaction may be because it is funded by the industry, but back-pedaled on previous insinuations that ICANN’s leadership were putting their own big salaries ahead of public safety.

The beef started in early June, when an organization called Coalition for a Secure & Transparent Internet — basically a front for the likes of DomainTools and other companies whose business models are threatened by privacy legislation — held a one-sided webinar entitled “The Threat of a Dark WHOIS”.

On that webinar, Daniel Burke, chief of the FDA’s Investigative Services Division, lamented the lack of cooperation his agency gets when requesting private Whois data from “certain” registrars, and pointed to cases where the FDA’s inability to quickly get fake pharma sites, including those related to Covid-19, shut down have led to deaths.

He also said that complaints to ICANN about non-compliant registrars fall on deaf ears, to the point that it no longer bothers complaining, and suggested that ICANN and domain companies are financially incentivized to be uncooperative.

Burke quoted the writer Upton Sinclair: “It is difficult to get a man to understand something when his salary depends on his not understanding it.”

“I have found that’s the case with my interactions with ICANN and certain registries and registrars,” Burke said. “They just don’t want to listen… it’s a money-maker for them right now, it’s not profitable for them to deal with it.”

Marby also “spoke” on the CSTI webinar, but his brief intervention was actually just an out-of-context snippet — the “GDPR is not my fault!” T-shirt speech — taken from a recording of an ICANN webinar back in January and presented — dishonestly in my opinion — as if it had been filmed as a contribution to the CSTI discussion.

His inability to directly respond to Burke live led him to write to the FDA (pdf) a couple of weeks later to dispute some of his claims.

First, Marby said the the FDA does not need to obtain a subpoena to get access to Whois data. Registrars are obliged to respond to “legitimate interest” requests, when balanced against the privacy rights of the registrant, he said. He added:

In a few instances, government agencies have submitted complaints to ICANN Contractual Compliance regarding registrars’ refusal to provide non-public registration data. These agencies were ultimately successful in gaining access to the requested data without having to obtain a subpoena or lawful order.

Second, Marby disputed the financial motivation claims, writing: “ICANN’s leadership’s salaries are in no way tied to or dependent upon domain name registrations.”

Third, he offered a (pretty weak, in my view) defense against the claim that ICANN ignores complaints from government agencies, pointing out: “ICANN is not political and, therefore, takes actions to ensure that the workings of the Internet are not politicized.”

He also pointed out that ICANN operates a system called DNSTICR which monitors reports of DNS abuse related to the pandemic and alerts the relevant registries and registrars.

The problem here is that ICANN’s definition of abuse is pretty narrow and does not extend to web sites that sell industrial bleach as a Covid cure. That would count as “content” and ICANN is not the “content police”.

That’s pretty much what Hermsen says in the latest missive (pdf) in this row.

DNS security threats such as malware and phishing, however, were not what SA Burke was referring to in his presentation. Given the agency’s public health mission, FDA has been working during the pandemic to protect Americans from unproven or fraudulent medical products claiming to treat, cure, prevent, mitigate or diagnose COVID-19…

Given your stated concerns regarding COVID-19-related malware and phishing activity, we trust that you are equally concerned about registrars who may not be following the [Registrar Accreditation Agreement’s] requirements to “investigate” and “respond appropriately” following receipt of notifications about abuse, particularly complaints reporting activity involving COVID-19-related fraud or activity exacerbated the current opioid addiction crisis — especially in light of ICANN’s singular ability to enforce the terms of RAAs.

She also comes back, splitting hairs in my opinion, on the ICANN salaries claim, stating: “SA Burke was not referring to ICANN’s leadership salaries… SA Burke was referring more generally to the substantial source of funding ICANN receives from domain name registries and registrars.”

ICANN has just started work on a Whois Disclosure System that, while pretty weak, may make it slightly easier for government agencies to obtain the data they want.

New gTLDs or Whois access? What’s more important?

Kevin Murphy, May 23, 2022, Domain Policy

Should ICANN focus its resources on getting the next round of new gTLDs underway, or making some baby steps towards a post-GDPR system of Whois access?

That’s a question the community is going to have to address when ICANN 74 rolls around next month, after the ICANN board presented it with a divisive question on two of the industry’s most pressing issues that split the GNSO Council along predictable lines at its monthly meeting last week.

It turns out that ICANN doesn’t have the resources to both design a new “SSAD Light” system for handling Whois requests and also carry on its new gTLDs Operational Design Phase, “SubPro”, at the same time.

If the community wants ICANN staff to start work on SSAD Light, work will be paused on the ODP for at least six weeks, ICANN has said. If they want the system also built, the delay to new gTLDs could be much, much longer.

Intellectual property lawyers are of course keen to at least start undoing some of the damage caused by privacy legislation such as GDRP, while registries and consultants are champing at the bit for another expansion of the gTLD space.

This split was reflected on the Council’s monthly call last week, where registry employees Maxim Alzoba, Kurt Pritz and Jeff Neuman were opposed by IP lawyers Paul McGrady and John McElwaine.

“Six weeks is a sneeze in a hurricane,” McGrady said. “We are right on the cusp of taking first steps to solve a problem that has plagued the Community since GDPR came out. I don’t think a six-week delay on SubPro, which again we’re years into and it looks like will be years to go, is a material change to SubPro… a very minor delay seems well worth it.”

At this point, ICANN is still planning to have the SubPro ODP wrapped up in October, thought it has warned that there could be other unforeseen delays.

Neuman warned that even a six-week pause could provide more than six weeks delay to SubPro. Staff can’t just down tools on one project and pick up again six weeks later without losing momentum, he said.

Pritz seemed to echo this concern. The Registries Stakeholder Group hasn’t finished discussing the issue yet, he said, but would be concerned about anything that caused “inefficiencies” and “switching costs”.

The discussion was pretty brief, and no votes were taken. It seems the conversation will pick up again in The Hague when ICANN meets for its short mid-year public meeting on June 13.

ICANN hasn’t implemented a policy since 2016

Kevin Murphy, January 31, 2022, Domain Policy

It’s been over five years since ICANN last implemented a policy, and many of its ongoing projects are in limbo.

Beggars belief, doesn’t it?

The ongoing delays to new gTLD program policy and the push-back from ICANN on Whois policy recently got me thinking: when was the last time ICANN actually did anything in the policy arena apart from contemplate its own navel?

The Org’s raison d’être, or at least one of them, is to help the internet community build consensus policies about domain names and then implement them, but it turns out the last time it actually did that was in December 2016.

And the implementation projects that have come about since then are almost all frozen in states of uncertainty.

ICANN policies covering gTLD domains are usually initiated by the Generic Names Supporting Organizations. Sometimes, the ICANN board of directors asks the GNSO Council for a policy, but generally it’s a bottom-up, grass-roots process.

The GNSO Council kicks it off by starting a Policy Development Process, managed by working group stocked with volunteers from different and often divergent special interest groups.

After a few years of meetings and mailing list conversations, the working group produces a Final Report, which is submitted to the Council, and then the ICANN board, for approval. There may be one or more public comment periods along the way.

After the board gives the nod, the work is handed over to an Implementation Review Team, made up of ICANN staff and working group volunteers, which converts the policy into implementation, such as enforceable contract language.

The last time an IRT actually led to a GNSO policy coming into force, was on December 1, 2016. Two GNSO consensus policies became active that day, their IRTs having concluded earlier that year.

One was the Thick WHOIS Transition Policy, which was to force the .com, .net and .jobs registries to transition to a “thick” Whois model by February 2019.

This policy was never actually enforced, and may never be. The General Data Protection Regulation emerged, raising complex privacy questions, and the transition to thick Whois never happened. Verisign requested and obtain multiple deferrals and the board formally put the policy on hold in November 2019.

The other IRT to conclude that day was the Inter-Registrar Transfer Policy Part D, which tweaked the longstanding Transfer Dispute Resolution Policy and IRTP to streamline domain transfers.

That was the last time ICANN actually did anything in terms of enforceable, community-driven gTLD policy.

You may be thinking “So what? If the domain industry is ticking over nicely, who cares whether ICANN is making new policies or not?”, which would be a fair point.

But the ICANN community hasn’t stopped trying to make policy, its work just never seems to make the transition from recommendation to reality.

According to reports compiled by ICANN staff, there are 12 currently active PDP projects. Three are in the working group stage, five are awaiting board attention, one has just this month been approved by the board, and three are in the IRT phase.

Of the five PDPs awaiting board action, the average time these projects have been underway, counted since the start of the GNSO working group, is over 1,640 days (median: 2,191 days). That’s about four and a half years.

Counting since final policy approval by the GNSO Council, these five projects have been waiting an average of 825 days (median: 494 days) for final board action.

Of the five, two are considered “on hold”, meaning no board action is in sight. Two others are on a “revised schedule”. The one project considered “on schedule” was submitted to the board barely a month ago.

The three active projects that have made it past the board, as far as the IRT phase, have been there for an average of 1,770 days (median: 2,001 days), or almost five years, counted from the date of ICANN board approval.

So why the delays?

Five of the nine GNSO-completed PDPs, including all three at the IRT stage, relate to Whois policy, which was thrown into confusion by the introduction of the European Union’s introduction of the GDPR legislation in May 2018.

Two of them pre-date the introduction of GDPR in May 2018, and have been frozen by ICANN staff as a result of it, while three others came out of the Whois EPDP that was specifically designed to bring ICANN policy into line with GDPR.

All five appear to be intertwined and dependent on the outcome of the ICANN board’s consideration of the EPDP recommendations and the subsequent Operational Design Assessment.

As we’ve been reporting, these recommendations could take until 2028 to implement, by which time they’ll likely be obsolete, if indeed they get approved at all.

Unrelated to Whois, two PDPs relate to the protection of the names and acronyms of international governmental and non-governmental organizations (IGOs/INGOs).

Despite being almost 10 years old, these projects are on-hold because they ran into resistance from the Governmental Advisory Committee and ICANN board. A separate PDP has been created to try to untangle the problem that hopes to provide its final report to the board in June.

Finally, there’s the New gTLD Subsequent Procedures PDP, which is in its Operational Design Phase and is expected to come before the board early next year, some 2,500 days (almost seven years) after the PDP was initiated.

I’m not sure what conclusions to draw from all this, other than that ICANN has turned into a convoluted mess of bureaucracy and I thoroughly understand why some community volunteers believe their patience is being tested.

“GDPR is not my fault!” — ICANN fears reputational damage from Whois reform

Kevin Murphy, January 28, 2022, Domain Policy

Damned if we do, damned if we don’t.

That seems to an uncomfortable message emerging from ICANN’s ongoing discussions about SSAD, the proposed Standardized System for Access and Disclosure, which promises to bring some costly and potentially useless reform to the global Whois system.

ICANN’s board of directors and the GNSO Council met via Zoom last night to share their initial reactions to the ICANN staff’s SSAD Operational Design Assessment, which had been published just 48 hours earlier.

I think it’s fair to say that while there’s still some community enthusiasm for getting SSAD done in one form or another, there’s much more skepticism, accompanied by a fear that the whole sorry mess is going to make ICANN and its vaunted multistakeholder model look bad/worse.

Some say that implementing SSAD, which could take six more years and cost tens of millions of dollars, would harm ICANN’s reputation if, as seems quite possible, hardly anyone ends up using it. Others say the risk comes from pissing away years of building community consensus on a set of policy recommendations that ultimately don’t get implemented.

GNSO councillor Thomas Rickert said during yesterday’s conference call:

One risk at this stage that I think we need to discuss is the risk to the credibility of the functionality of the multi-stakeholder model. Because if we give up on the SSAD too soon, if we don’t come up with a way forward on how to operationalize it, then we will be seen as an organization that takes a few years to come up with policy recommendations that never get operationalized and that will certainly play into the hands of those who applaud the European Commission for coming up with ideas in NIS2, because obviously they see that the legislative process at the European and then at the national state level is still faster than ICANN coming up with policies.

NIS2 is a formative EU Directive that is likely to shake up the privacy-related legal landscape yet again, almost certainly before ICANN’s contractors even type the first line of SSAD code.

While agreeing with Rickert’s concerns, director Becky Burr put forward the opposing view:

The flip side of that is that we build it, we don’t have the volume to support it at a reasonable cost basis and it does not change the outcome of a request for access to the Whois data… We build it, with all its complexity and glory, no one uses it, no one’s happy with it and that puts pressure on the multi-stakeholder model. I’m not saying where I come out on this, but I feel very torn about both of those problems.

The ODA estimates the cost of building SSAD at up to $27 million, with the system not going live until 2027 or 2028. Ongoing annual operating costs, funded by fees collected from the people requesting private Whois data, could range from $14 million to $107 million, depending on how many people use it and how frequently.

These calculations are based on an estimated user base of 25,000 and three million, with annual queries of 100,000 and 12 million. The less use the system gets, the higher the per-query cost.

But some think the low end of these assumptions may still be too high, and that ultimately usage would be low enough to make the query fees so high that users will abandon the system.

Councillor Kurt Pritz said:

I think there’s a material risk that the costs are going to be substantially greater than what’s forecast and the payback and uptake is going to be substantially lower… I think there’s reputational risk to ICANN. We could build this very expensive tool and have little or no uptake, or we could build a tool that becomes obsolete before it becomes operational.

The low-end estimates of 25,000 users asking for 100,000 records may be “overly optimistic”, Pritz said, given that only 1,500 people are currently asking registrars for unredacted Whois records. Similarly, there are only 25,000 requests per year right now, some way off the 100,000 low-end ODA assumption, he said.

If SSAD doesn’t even hit its low-end usage targets, the fee for a single Whois query could be even larger than the $40 high-end ODA prediction, creating a vicious cycle in which usage drops further, further increasing fees.

SSAD doesn’t guarantee people requesting Whois data actually get it, and bypassing SSAD entirely and requesting private data directly from a registrar would still be an option.

There seems to be a consensus now that GDPR always requires registries and registrars to ultimately make the decision as to whether to release private data, and there’s nothing ICANN can do about it, whether with SSAD or anything else.

CEO Göran Marby jokingly said he’s thinking about getting a T-shirt printed that says “GDPR was not my fault”.

“The consequences of GDPR on the whole system is not something that ICANN can fix, that’s something for the legislative, European Commission and other ones to fix,” he said. “We can’t fix the law.”

One idea to rescue SSAD, which has been floated before and was raised again last night, is to cut away the accreditation component of the system, which Marby reckons accounts for about two thirds of the costs, and basically turn SSAD into a simplified, centralized “ticketing system” (ironically, that’s the term already used derisively to describe it) for handling data requests.

But the opposing view — that the accreditation component is actually the most important part of bringing Whois into GDPR compliance — was also put forward.

Last night’s Zoom call barely moved the conversation forward, perhaps not surprisingly given the limited amount of time both sides had to digest the ODA, but it seems there may be future conversations along the same lines.

ICANN’s board, which was in “listening mode” and therefore pretty quiet last night, is due to consider the SSAD recommendations, in light of the ODA, at some point in February.

I would be absolutely flabberghasted if they were approved in full. I think it’s far more likely that the policy will be thrown back to the GNSO for additional work to make it more palatable.

No SSAD before 2028? ICANN publishes its brutal review of Whois policy

Kevin Murphy, January 25, 2022, Domain Policy

Emergency measures introduced by ICANN to reform Whois in light of new privacy laws could wind up taking a full decade, or even longer, to bear dead-on-the-vine fruit.

That’s arguably the humiliating key takeaway from ICANN’s review of community-created policy recommendations to create a Standardized System for Access and Disclosure (SSAD), published this evening.

The Org has released its Operational Design Assessment (pdf) of SSAD, the first-ever ODA, almost nine months after the Operational Design Phase was launched last April.

It’s a 122-page document, about half of which is appendices, that goes into some detail about how SSAD and its myriad components would be built and by whom, how long it would take and how much it would cost.

It’s going to take a while for the community (and me) to digest, and while it generally veers away from editorializing it does gift opponents of SSAD (which may include ICANN itself) with plenty of ammunition, in the form of enumerated risk factors and generally impenetrable descriptions of complex systems, to strangle the project in the crib.

Today I’m just going to look at the timing.

Regular DI readers will find little to surprise them among the headline cost and timeline predictions — they’ve been heavily teased by ICANN in webinars for over a month — but the ODA goes into a much more detailed breakdown.

SSAD, ICANN predicts, could cost as much as $27 million to build and over $100 million a year to operate, depending on adoption, the ODA says. We knew this already.

But the ODA contains a more detailed breakdown of the timeline to launch, and it reveals that SSAD, at the most-optimistic projections, would be unlikely to see the light of day until 2028.

That’s a decade after the European Union introduced the GDPR privacy law in May 2018.

Simply stated, the GDPR told registries and registrars that the days of unfettered access to Whois records was over — the records contain personal information that should be treated with respect. Abusers could be fined big.

ICANN had been taken off-guard by the law. GDPR wasn’t really designed for Whois and ICANN had not been consulted during its drafting. The Org started to plan for its impact on Whois barely a year before it became effective.

It used the unprecedented top-down emergency measure of the Temporary Specification to force contracted parties to start to redact Whois data, and the GNSO Council approved an equally unprecedented Expedited Policy Development Process, so the community could create some bottom-up policy.

The EPDP was essentially tasked with creating a way for the people who found Old Whois made their jobs easier, such as intellectual property lawyers and the police, to request access to the now-private personal data.

It came up with SSAD, which would be a system where approved, accredited users could funnel their data requests through a centralized gateway and have some measure of assurance that they would at least be looked at in a standardized way.

But, considering the fact that they would not be guaranteed to have their requests approved, the system would be wildly complex, potentially very expensive, and easily circumvented, the ODP found.

It’s so complex that ICANN reckons it will take between 31.5 and 42 months for an outsourced vendor to build, and that’s after the Org has spent two years on its Implementation Review Team activities.

SSAD timeline

That’s up to almost six years from the moment ICANN’s board of directors approves the GNSO’s SSAD recommendations. That could come as early as next month (but as I reported earlier today, that seems increasingly unlikely).

The ODA points out that this timetable could be extended due to factors such as new legislation being introduced around the world that would affect the underlying privacy assumptions with which SSAD was conceived.

And this is an “expedited” process, remember?

Ten years ago, under different management and a different set of bylaws, ICANN published some research into the average duration of a Policy Development Process.

The average PDP took 620 days back then, from the GNSO Council kicking off the process to the ICANN board voting to approve or reject the policy. I compared it to an elephant pregnancy, the longest gestation period of all the mammals, to emphasize how slow ICANN had become.

Slow-forward to today, when the “expedited” PDP leading to SSAD has so far lasted 1,059 days, if we’re counting from when Phase 2 began in March 2019. It’s taken 1,287 days if we’re being less generous and counting from the original EPDP kicking off.

Nelly could have squeezed out two ankle-nibblers in that time. Two little elephants, one of which would most assuredly be white.

ICANN board not happy with $100 million Whois reform proposals

Kevin Murphy, January 25, 2022, Domain Policy

ICANN’s board of directors has given its clearest indication yet that it’s likely to shoot down community proposals for a new system for handling requests for private Whois data.

Referring to the proposed System for Standardized Access and Disclosure, ICANN chair Maarten Botterman said “the Board has indicated it may not be able to support the SSAD recommendations as a whole”.

In a letter (pdf) to the GNSO Council last night, Botterman wrote:

the complexity and resources required to implement all or some of the recommendations may outweigh the benefits of an SSAD, and thus may not be in the best interests of ICANN nor the ICANN community.

The SSAD would be a centralized way for accredited users such as trademark lawyers, security researchers and law enforcement officers to request access to Whois data that is currently redacted due to privacy laws such as GDRP.

The system was the key recommendation of a GNSO Expedited Policy Development Process working group, but an ICANN staff analysis last year, the Operational Design Phase, concluded that it could be incredibly expensive to build and operate while not providing the functionality the trademark lawyers et al require of it.

ICANN was unable to predict with any accuracy how many people would likely use SSAD. It will this week present its final ODP findings, estimating running costs of between $14 million and $107 million per year and a user base of 25,000 to three million.

At the same time, ICANN has pointed out that its own policies cannot overrule GDPR. Registries and registrars still would bear the legal responsibility to decide whether to supply private data to requestors, and requestors could go to them directly to bypass the cost of SSAD altogether. Botterman wrote:

This significant investment in time and resources would not fundamentally change what many in the community see as the underlying problem with the current process for requesting non-public gTLD registration data: There is no guarantee that SSAD users would receive the registration data they request via this system.

ICANN management and board seem to be teasing the GNSO towards revising and scaling back its recommendations to make SSAD simpler and less costly, perhaps by eliminating some of its more expensive elements.

This moves ICANN into the perennially tricky territory of opening itself up to allegations of top-down policy-making.

Botterman wrote:

Previously, the Board highlighted its perspective on the importance of a single, unified model to ensure a common framework for requesting non-public gTLD registration data. However, in light of what we’ve learned to date from the ODP, the Board has indicated it may not be able to support the SSAD recommendations as a whole as envisioned by the EPDP. The Board is eager to discuss next steps with the Council, as well as possible alternatives to design a system that meets the benefits envisioned by the EPDP

The board wants to know whether the GNSO Council shares its concerns. The two parties will meet via teleconference on Thursday to discuss the matter. The ODP’s final report may be published before then.

ICANN trying to strangle SSAD in the crib?

Kevin Murphy, January 14, 2022, Domain Policy

ICANN is trying to kill off or severely cripple Whois reform because it thinks the project stands to be too expensive, too time-consuming, and not fit for purpose.

That’s what many long-time community members are inferring from recent discussions with ICANN management about the Standardized System for Access and Disclosure (SSAD), a proposed method of normalizing how people request access to private, redacted Whois data.

The community has been left trying to read the tea leaves following a December 20 briefing in which ICANN staff admitted they have failed to even approximately estimate how well-used SSAD, which has been criticized by potential users as pointless, might be.

During the briefing, staff gave a broad range of implementation times and cost estimates, saying SSAD could take up to four years and $27 million to build and over $100 million a year to operate, depending on adoption.

The SSAD idea was thrown together in, by ICANN standards, super-fast time with a super-tenuous degree of eventual consensus by a cross-community Expedited Policy Development Process working group.

One of the EPDP’s three former chairs, Kurt Pritz, a former senior ICANN staffer who’s been heavily involved in community work since his departure from the Org in 2012, provided his read of the December webinar on a GNSO Council discussion this week.

“I’ve sat through a number of cost justification or cost benefit analyses in my life and got a lot of reports, and I’ve never sat through one that more clearly said ‘Don’t do this’,” Pritz said.

GNSO liaison to the Governmental Advisory Committee Jeff Neuman concurred moments later: “It seemed that we could imply from the presentation that that staff was saying ‘Don’t do it’… we should require them to put that in writing.”

“It was pretty clear from the meeting that ICANN Org does not want to build the SSAD. Many people in the community think its estimates are absurdly inflated in order to justify that conclusion,” Milton Mueller of the Internet Governance Project recently wrote of the same webinar.

These assessments seem fair, to the extent that ICANN appears seriously averse to implementing SSAD as the recommendations are currently written.

ICANN repeated the December 20 cost-benefit analysis in a meeting with the GAC this week, during which CEO Göran Marby described the limitations of SSAD, and how it cannot override privacy laws such as the GDPR:

It’s not a bug, it’s a feature of GDPR to limit access to data…

The SSAD is a recommended system to streamline the process of requesting data access. It cannot itself increase access to the data, as this is actually determined by the law. And so, in practice, the SSAD is expected to have little to no impact on the contracted parties’ ultimate disclosure or nondisclosure response to requests… it’s a ticketing system with added functionality.

While Marby stressed he was not criticizing the EPDP working group, that’s still a pretty damning assessment of its output.

Marby went on to reiterate that even if SSAD came into existence, people wanting private Whois data could still request it directly from registries and registrars, entirely bypassing SSAD and its potentially expensive (estimated at up to $45) per-query fees.

It seems pretty clear that ICANN staff is not enthused about SSAD in its current form and there’s a strong possibility the board of directors will concur.

So what does the policy-making community do?

There seems to be an emerging general acceptance among members of the GNSO Council that the SSAD proposals are going to have to be modified in some way in order for them to be approved by the board.

The question is whether these modifications are made preemptively, or whether the GNSO waits for more concrete feedback from Org and board before breaking out the blue pen.

Today, all the GNSO has seen is a few PowerPoint pages outlining the top-line findings of ICANN’s Operational Design Assessment, which is not due to be published in full until the board sees it next month.

Some Council members believe they should at least wait until the full report is out, and for the board to put something on the record detailing its reservations about SSAD, before any changes are made.

The next update on SSAD is an open community session, likely to cover much of the same ground as the GAC and GNSO meetings, scheduled for 1500 UTC on January 18. Details here.

The GNSO Council is then scheduled to meet January 20 for its regular monthly meeting, during which next steps will be discussed. It will also meet with the ICANN board later in the month to discuss its concerns.