Three ways ICANN could gut Whois

ICANN has published three possible models of how Whois could be altered beyond recognition after European privacy law kicks in this May.
Under each model, casual Whois users would no longer have access to the wealth of contact information they do under the current system.
There may also be a new certification program that would grant access to full Whois records to law enforcement, consumer protection agencies and intellectual property interests.
The three models are each intended to address the General Data Protection Regulation, EU law that could see companies fined millions if they fail to protect the personal data of European citizens.
While GDPR affects all data collection on private citizens, for the domain name industry it’s particularly relevant to Whois, where privacy has always been an afterthought.
The three ICANN models, which are now subject to a short public comment period, differ from each other in three key areas: who has their privacy protected, which fields appear in public Whois by default, and how third parties such as law enforcement access the full records.
Model 1 is the most similar to the current system, allowing for the publication of the most data.
Under this model the name and postal address of the registrant would continue to be displayed in the public Whois databases.
Their email address and phone number would be protected, but the email and phone of the administrative and technical contacts — often the same person as the registrant — would be published.
If the registrant were a legal entity, rather than a person, all data fields would continue to be displayed as normal.
The other two models call for more restricted, or at least different, public output.
Under Model 2, the email addresses of the administrative and technical contacts would be published, but all other contact information, including the name of the registrant, would be redacted.
Model 3 proposes a crazy-sounding system whereby everything would be published unless the registrar/registry decided, on a domain-by-domain basis, that the field contained personal information.
This would require manual vetting of each Whois record and is likely to gather no support from the industry.
The three models also differ in how third parties with legitimate interests would access full Whois records.
Model 1 proposes a system similar to how zone files are published via ICANN’s Centralized Zone Data Service.
Under this model, users would self-certify that they have a legit right to the data (if they’re a cop or an IP lawyer, for example) and it would be up to the registry or registrar to approve or decline their request.
Model 2 envisages a more structured, formal, centralized system of certification for Whois users, developed with the Governmental Advisory Committee and presumably administered by ICANN.
Model 3 would require Whois users to supply a subpoena or court order in order to access records, which is sure to make it unpopular among the IP lobby and governments.
Each of the three models also differs in terms of the circumstances under which privacy is provided.
The models range from protecting records only when the registrant, registry, registrar or any other entity involved in the data processing has a presence in the European Economic Area to protecting records of all registrants everywhere regardless of whether they’re a person or a company.
Each model has different data retention policies, ranging from six month to two years after a registration expires.
None of the three models screw with registrars’ ability to pass data to thick-Whois registries, nor to their data escrow providers.
ICANN said it’s created these models based on the legal analyses it commissioned from the Hamilton law firm, as well as submissions from community members.
One such submission, penned by the German trade associated Eco, has received broad industry support.
It would provide blanket protection to all registrants regardless of legal status or location, and would see all personally identifiable information stripped from public Whois output.
Upon carrying out a Whois query, users would see only information about the domain, not the registrant.
There would be an option to request more information, but this would be limited to an anonymized email address or web form for most users.
Special users, such as validated law enforcement or IP interests, would be able to access the full records via a new, centralized Trusted Data Clearinghouse, which ICANN would presumably be responsible for setting up.
It’s most similar to ICANN’s Model 2.
It has been signed off by registries and registrars together responsible for the majority of the internet’s domain registrations: Afilias, dotBERLIN, CentralNic, Donuts, Neustar, Nominet, Public Interest Registry (PIR), Verisign, 1&1, Arsys, Blacknight, GoDaddy, Strato/Cronon, Tucows and United Domains.
ICANN said in a blog post that its three models are now open for public comment until January 29.
If you have strong opinions on any of the proposals, it might be a good idea to get them in as soon as possible, because ICANN plans to identify one of the models as the basis for the official model within 48 hours of the comment period closing.

How Whois could survive new EU privacy law

Reports of the death of Whois may have been greatly exaggerated.
Lawyers for ICANN reckon the current public system “could continue to exist in some form” after new European Union privacy laws kick in next May, according to advice published (hurriedly, judging by the typos towards the end) shortly before Christmas.
Hamilton, the Swedish law firm hired by ICANN to probe the impact of the General Data Protection Regulation, seems to be mellowing on its recommendation that Whois access be permanently “layered” according to who wants to access registration records.
Now, it’s saying that layered Whois access could merely be a “temporary solution” to protect the industry from fines and litigation until ICANN negotiates a permanent peace treaty with EU privacy regulators that would have less impact on current Whois users.
This opinion came in the third of three memorandums from Hamilton, published by ICANN last week. You can read it here (pdf).
With the first two memos strongly hinting that layered access would be the most appropriate way forward, the third points out the huge, possibly insurmountable burden this would place on registrars, registries, law enforcement agencies, the courts, IP lawyers, and others.
It instead suggests that layered access be temporary, with ICANN taking the lead in arranging a longer-term understanding with the EU.
The latest Hamilton memo seems to have taken on board comments from registries and registrars, intellectual property lawyers and domain investors, none of which are particularly enthusiastic about GDPR and the lack of clarity surrounding its impacts.
GDPR is an EU-wide law that gives much stronger protection to the personal data of private citizens.
Companies that process such data are kept on a much tighter leash and could face millions of euros of fines if they use the data for purposes their customers have not consented to or without a good enough reason.
It’s not a specifically intended to regulate Whois — indeed, its conflict with longstanding practice and ICANN rules seems to have been an afterthought — but Whois is the place the domain industry is most likely to find itself breaking the law.
It seems to be generally agreed that the current system of open, public access to all fields in all Whois records in all gTLDs would not be compliant with GDPR without some significant changes.
It also seems to be generally agreed that the data can be hugely useful for purposes such as police investigations, trademark enforcement and the domain secondary market.
The idea that layered access — where different sets of folks get access to different sets of data based on their legitimate needs — might be a solution has therefore gained some support.
Hamilton notes:

Given the limited time remaining until the GDPR enters into effect, we believe that the best chance of continuing to provide the Whois services and still be compliant with the GDPR will be to implement an interim solution based on an layered access model that would ensure continued processing of Whois data for some limited purposes.

The problem with this solution, as Hamilton now notes, is that it could be hugely impractical.

such a model would require the registrars to perform an assessment of interests in accordance with Article 6.1(f) GDPR on an individual case-by-case basis each time a request for access is made. This would put a significant organizational and administrative pressure on the registrars and also require them to obtain and maintain the competence required to make such assessments in order to deliver the requested data in a reasonably timely manner. In our opinion, public access to (limited) Whois data would therefore be of preference and necessary to fulfill the above purposes in a practical and efficient way.

And, Hamilton says, a scenario in which all cops had access to all Whois data would not necessarily be GDPR-compliant. Police may have to right to access the data, but they’d have to request it on a case-by-case basis.
Registrars — or even the courts — would have to make the decision as to whether each request was legit.
It would get even more complex for registrars when the Whois requester was an IP lawyer, as they’d have to check whether it was appropriate to disclose the personal data to both the lawyer and her client, the memo says.
For registrars, the largely nominal cost of providing a Whois service today would suddenly rocket as each Whois lookup would require human intervention.
Having introduced the concept of layered access and then shot it to pieces, Hamilton finally recommends that ICANN start talks with data protection authorities in the EU in order to find a solution where Whois services can continue to be provided in a form available to the general public in the future”.
ICANN should start an “informal dialogue” with the Article 29 Working Party, the EU privacy watchdog made up of data protection authorities from each member state, and initiate formal consultations with one or more of these DPAs individually, the memo recommends.
The WP29 could prove a tough chat, given that the group has a long history of calling for layered access, and its views, even if changed, would not be binding anyway.
So Hamilton says ICANN, in conjunction with its registries and registrars, should carry out a formal data protection impact assessment (DPIA) and submit it to a relevant DPA in a EU country where it has a corporate presence, such as Belgium.
That way, at least ICANN has a chance of retaining Whois in a vaguely recognizable form while protecting the industry from crippling extra costs.
In short, the industry is still going to have to make some changes to Whois in the first half of 2018, some of which may make Whois access troublesome for many current users, but those changes may not last forever.
ICANN CEO Goran Marby said in a blog post:

We’ve made it a high priority to find a path forward to ensure compliance with the GDPR while maintaining WHOIS to the greatest extent possible. Now, it is time to identify potential models that address both GDPR and ICANN compliance obligations.
We’ll need to move quickly, while taking measured steps to develop proposed compliance models. Based on the analysis from Hamilton, it appears likely that we will need to incorporate the advice about using a layered access model as a way forward.

He wants the industry to submit compliance models by January 10 for publication January 15, with ICANN hoping to “settle on a compliance model by the end of January”.

ICANN chief tells industry to lawyer up as privacy law looms

The domain name industry should not rely on ICANN to protect it from incoming EU privacy law.
That’s the strong message that came out of ICANN 60 in Abu Dhabi last week, with the organization’s CEO repeatedly advising companies to seek their own legal advice on compliance with the General Data Protection Regulation.
The organization also said that it will “defer taking action” against any registrar or registry that does not live up its contractual Whois commitments, within certain limits.
“GDPR is a law. I didn’t come up with it, it didn’t come from ICANN policy, it’s the law,” Marby said during ICANN 60 in Abu Dhabi last week.
“This is the first time we’ve seen any legislation that has a direct impact on our ability to make policies,” he said.
GDPR is the EU law governing how companies treat the private information of individuals. While in force now, from May next year companies in any industry found in breach of GDPR could face millions of euros in fines.
For the domain industry, it is expected to force potentially big changes on the current Whois system. The days of all Whois contact information published freely for all to see may well be numbered.
But nobody — not even ICANN — yet knows precisely how registries and registrars are going to be able to comply with the law whilst still publishing Whois data as required by their ICANN contracts.
The latest official line from ICANN is:

At this point, we know that the GDPR will have an impact on open, publicly available WHOIS. We have no indication that abandoning existing WHOIS requirements is necessary to comply with the GDPR, but we don’t know the extent to which personal domain registration data of residents of the European Union should continue to be publicly available.

Marby told ICANNers last week that it might not be definitively known how the law applies until some EU case law has been established in the highest European courts, which could take years.
A GNSO working group and ICANN org have both commissioned legal studies by European law experts. The ICANN one, by Swedish law firm Hamilton, is rather more comprehensive and can be read here (pdf).
Even after this report, Marby said ICANN is still in “discovery” mode.
Marby encouraged the industry to not only submit their questions to ICANN, to be referred on to Hamilton for follow-up studies, but also to share whatever legal advice they have been given and are able to share.
He and others pointed out that Whois is not the only point of friction with GDPR — it’s a privacy law, not a Whois law — so registries and registrars should be studying all of their personal data collection processes for potential conflicts.
Because there is very likely going to be a clash between GDPR compliance and ICANN contract compliance, ICANN has suspended all enforcement actions against Whois violations, within certain parameters.
It said last week that: “ICANN Contractual Compliance will defer taking action against any registry or registrar for noncompliance with contractual obligations related to the handling of registration data.”
This is not ICANN saying that registries and registrars can abandon Whois altogether, the statement stresses, but they might be able to adjust their data-handling models.
Domain firms will have to show “a reasonable accommodation of existing contractual obligations and the GDPR” and will have to submit their models to ICANN for review by Hamilton.
ICANN also stressed that registries may have to undergo a Registry Services Evaluation Process review before they can deploy their new model.
The organization has already told two Dutch new gTLD registries that they must submit to an RSEP, after .amsterdam and .frl abruptly stopped publishing Whois data for private registrants recently.
General counsel John Jeffrey wrote to the registries’ lawyer (pdf) to state that an RSEP is required regardless of whether the “new registry service” was introduced to comply with local law.
“One of the underlying purposes of this policy is to ensure that a new registry service does not create and security, stability or competition concerns,” he wrote.
Jeffrey said that while Whois privacy was offered at the registry level, registrars were still publishing full contact details for the same registrants.
ICANN said last week that it will publish more detailed guidance advising registries and registrars how to avoid breach notices will be published “shortly”.