CPE probe: “whitewash” or “fig leaf”?

A few weeks ago, when I was reporting the conclusions of a probe into ICANN’s new gTLD program, I wrote a prediction on a piece of paper and placed it into a sealed envelope.*
I wrote: “They’re gonna call this a whitewash.”
And I was correct! Ta-dah! I’m here all week.
The lawyer for applicants for .music and .gay gTLDs has written to ICANN to complain that a purportedly independent review of the Community Evaluation Process was riddled with errors and oversights and should not be trusted.
In a letter on behalf of dotgay LLC, Arif Ali calls the report a “whitewash”. In a letter on behalf of DotMusic, he calls it a “fig leaf”.
Both companies think that the CPE probe was designed to give ICANN cover to proceed with auctions for five outstanding gTLD contention sets, rather than to get to the bottom of perceived inconsistencies in the process.
Both of Ali’s clients applied for their respective gTLDs as “community” applicants, trying to avoid auctions by using the Community Priority Evaluation process.
During their CPEs, both carried out by the Economist Intelligence Unit, neither applicant scored highly enough to win the exclusive right to .gay or .music, meaning the next stage was to auction the strings off to the highest bidder.
After repeated complaints from applicants and an Independent Review Process finding that ICANN lacked transparency and that staff may have had inappropriate influence over the EIU, ICANN hired FTI Consulting to look into the whole CPE process.
FTI’s report was finally delivered late last year, clearing ICANN on all counts of impropriety and finding that the EIU’s evaluations had been consistent across each of the applications it looked at.
The remaining gTLDs affected by this are .music, .gay, .hotel, .cpa, and .merck.
ICANN’s board of directors is due to meet to discuss next steps this weekend, but Ali says that it should “critically evaluate the [FTI] Report and not accept its wholesale conclusions”. He wrote, on behalf of DotMusic:

The report reveals that FTI’s investigation was cursory at best; its narrow mandate and evaluation methodology were designed to do little more than vindicate ICANN’s administration of the CPE process.
…
It is evident that FTI engaged in a seemingly advocacy-driven investigation to reach conclusions that would absolve ICANN of the demonstrated and demonstrable problems that afflicted the CPE process.

Among the applicants’ list of complaints: their claim that FTI did not interview affected applicants or take their submissions seriously, and the fact that ICANN was less than transparent about who was conducting the probe and what its remit was.
The same letter quotes ICANN chair Cherine Chalaby, then vice-chair, saying in a January 2017 webinar that he had observed inconsistencies in how the CPEs were carried out; inconsistencies FTI has since found did not occur.
That should be enough to provoke discussion when the board meets to discuss this and other issues in Los Angeles on Saturday.
* I didn’t actually do this of course, I just thought about it, but you get my point.

US and EU call for Whois to stay alive

Government officials from both sides of the Atlantic have this week called on ICANN to preserve Whois as it currently is, in the face of incoming EU privacy law, at least for a select few users.
The European Commission wrote to ICANN to ask for a “pragmatic and workable solution” to the apparent conflict between the General Data Protection Regulation and the desire of some folks to continue to access Whois as usual.
Three commissioners said in a letter (pdf) that special consideration should be given to “public interests” including “ensuring cybersecurity and the stability of the internet, preventing and fighting crime, protecting intellectual property and copyright, or enforcing consumer protection measures”.
David Redl, the new head of the US National Telecommunications and Information Administration, echoed these concerns in a speech at the State of the Net conference in Washington DC on Monday.
Redl said that the “preservation of the Whois service” is one of NTIA’s top two priorities at the moment. The other priority is pressing for US interests in the International Telecommunications Union, he said.
Calling Whois “a cornerstone of trust and accountability for the Internet”, Redl said the service “can, and should, retain its essential character while complying with national privacy laws, including the GDPR.”
“It is in the interests of all Internet stakeholders that it does,” he said. “And for anyone here in the US who may be persuaded by arguments calling for drastic change, please know that the US government expects this information to continue to be made easily available through the Whois service.”
He directly referred to the ability of regular internet users to access Whois for consumer protection purposes in his speech.
The European Commission appears to be looking at a more restrictive approach, but it did offer some concrete suggestions as to how GDPR compliance might be achieved.
For example, the commissioners’ letter appears to give tacit approval to the idea of “gated” access to Whois, but called for access by law enforcement to be streamlined and centralized.
It also suggests throttling as a mechanism to reduce abuse of Whois data, and makes it clear that registrants should always be clearly informed how their personal data will be used.
The deadline for GDPR compliance is May this year. That’s when the ability of EU countries to start to levy fines against non-compliant companies, which could run into millions of euros, kicks in.
While ICANN has been criticized by registries and registrars for moving too slowly to give them clarity on how to be GDPR-compliant while also sticking to the Whois provisions of their contracts, its pace has been picking up recently.
Two weeks ago it called for comments on three possible Whois models that could be used from May.
That comment period ended on Monday, and ICANN is expected to publish the model upon which further discussions will be based today.

Is the Trump administration really trying to reverse the IANA transition?

Questions have been raised about the US government’s commitment to an independent ICANN, following the release of letters sent by two top Trump appointees.
In the letters, new NTIA head David Redl and Secretary of Commerce Wilbur Ross expressed an interest in looking at ways to “unwind” the IANA transition, which in 2016 severed the formal ties between ICANN and the US in DNS root zone management.
Responding to questions from senators during his lengthy confirmation process, now National Telecommunications and Information Administration assistant secretary Redl wrote:

I am not aware of any specific proposals to reverse the IANA transition, but I am interested in exploring ways to achieve this goal. To that end, if I am confirmed I will recommend to Secretary Ross that we begin the process by convening a panel of experts to investigate options for unwinding the transition.

The letters were first obtained by Politico under the Freedom of Information Act. We’re publishing them here (pdf).
They were sent last August, when Redl’s confirmation to the NTIA role was being held up by Senator Ted Cruz, who vehemently opposed the transition because he said he thought it would give more power over online speech to the likes of Russia and China.
He was confirmed in November.
The question is whether Redl was serious about unwinding the transition, or whether he was just bullshitting Cruz in order to remove a roadblock to his confirmation.
Technically, he only promised to “recommend” convening a panel of experts to his boss, Ross.
NTIA declined to comment last week when DI asked whether the department still supports the IANA transition, whether any efforts are underway to unwind it, and whether the panel of experts has already been convened.
Redl’s statements on ICANN since his confirmation have been more or less consistent with his Obama-era predecessor, Larry Strickling, in terms of expressing support for multi-stakeholder models, but with perhaps some causes for concern.
During his first public speech, delivered at the CES show in Las Vegas earlier this month, Redl expressed support for multi-stakeholder internet governance amid pushes for more multi-lateral control within venues such as the International Telecommunications Union.
However, he added:

I’ll also focus on being a strong advocate for U.S. interests within ICANN. We need to ensure transparency and accountability in ICANN’s work. And in light of the implementation of the European General Data Privacy Regulation, or GDPR, we need to preserve lawful access to WHOIS data, which is a vital tool for the public.
In the coming weeks, I’ll be seeking out the views of stakeholders to understand how else NTIA can best serve American interests in these global Internet fora.

Could this be an allusion to the “panel of experts”? It’s unclear at this stage.
One of Redl’s first moves as NTIA chief was to slam ICANN for its lack of accountability concerning the shutdown of a review working group, but that was hardly a controversial point of view.
And in a letter to Senator Brian Schatz, the Democrat ranking member of the Senate Commerce Subcommittee on Communications, Technology, Innovation, and the Internet, sent earlier this month, Redl expressed support for the multi-stakeholder model and wrote:

NTIA will be a strong advocate for US interests with the Governmental Advisory Committee of the Internet Cooperation [sic] for Assigned Names and Numbers (ICANN) in the existing post-transition IANA phase. NTIA will also monitor the [IANA operator] Public Technical Identifiers (PTI) and take action as necessary to ensure the security and stability of the DNS root.

That certainly suggests NTIA is happy to work in the new paradigm, while the promise to “take action as necessary” against PTI may raise eyebrows.
While a lot of this may seem ambiguous, my hunch is that there’s not really much appetite to reverse the IANA transition. Apart from appeasing Cruz’s demons, what could possibly be gained?
Ross, quizzed by Cruz at his own confirmation hearing a year ago, seemed reluctant to commit to such a move.

New gTLD revenue cut by HALF in ICANN budget

The new gTLD industry is performing terribly when compared to ICANN’s predictions just six months ago.
ICANN budget documents published over the weekend show that by one measure new gTLDs are doing just 51% of the business ICANN thought they would.
The new budget (pdf) shows that for the fiscal year 2018, which ends June 30, ICANN currently expects to receive $4.6 million in registry transaction fees.
These are the fees registries must pay for each new registration, renewal or transfer, when the TLD has more than 50,000 domains under management.
In a draft budget (pdf) published March 2017, its “best estimate” for these fees in FY18 was $8.9 million, almost double its newest prediction.
That prediction lasted until the approved budget (pdf) published last August.
The budget published at the weekend expects this transaction revenue to increase 31.1% to $6 million by June 30, 2019, still a long way off last year’s estimate.
At the registrar level, where registrars pay a transaction fee regardless of the size of the customer’s chosen gTLD, ICANN expects new gTLD revenue to be $3.9 million in FY18.
That’s just 52% of its March/August 2017 estimate of $7.5 million.
Looking at all reportable transactions — including the non-billable ones — ICANN’s projection for FY18 is now 21.9 million, compared to its earlier estimate of 41.7 million.
ICANN even reckons the number of new, 2012-round gTLDs actually live on the internet is going to shrink.
Its latest budget assumes 1,228 delegated TLDs by the end of June this year, which appears to be a couple light on current levels (at least according to me) and down from the 1,240 it expected a year ago.
It expects there to be 1,231 by the end of June 2019, which is even lower than it expected have in June 2017.
I suspect this is related to dot-brands cancelling their contracts, rather than retail gTLDs going dark.
Revenue from fixed registry fees for FY18 is expected to be $30.6 million, $200,00 less than previous expectations. Those numbers are for all gTLDs, old and new.
Overall, the view of new gTLDs is not pretty, when judged by what ICANN expected.
It shows that ICANN is to an extent captive to the whims of a fickle market that has in recent years been driven by penny deals and Chinese speculation.
By contrast, legacy gTLDs (.com, .info, etc) are running slightly ahead of earlier projections.
ICANN now expects legacy registry transaction fees of $48.6 million for FY18, which is $200,000 more than predicted last year.
It expects registrar transaction fees of $29.5 million, compared to its earlier forecast of $29.4 million.
This is not enough to recoup the missing new gTLD money, of course, which is why ICANN is slashing $5 million from its budget.

ICANN slashes millions from its budget

ICANN has cut $5 million from its annual budget, warning the community that difficult decisions have to be made amid a slowing domain name market.
Staff and community members will all be affected by the cuts, whether in the form of less generous pay raises or fewer travel opportunities.
Cuts have also been proposed to international outreach, tech support, contractual compliance and translation services.
The organization at the weekend published for comment its proposed budget for fiscal 2019. That’s the year that begins July 1, 2018.
It would see ICANN spend $138 million, $5 million less than it expects to spend in fiscal 2018.
Four of the five top-line areas ICANN reports expenses will be cut for a total of $12 million in savings, while one of them — personnel — is going up by $7.3 million.
This rounds out to a $5 million cut to the total FY19 ICANN budget. Here’s the breakdown:

• Personnel costs going up from $69.5 million to $76.8 million, up $7.3 million.
• Travel and meetings costs are to go down from $17.8 million to $15.6 million, a $2.2 million saving.
• Professional services costs will go down from $27.7 million to $23.4 million, a $4.3 million saving.
• Administration and capital costs will go down from $22.5 million to $17.8 million, a $4.7 million saving.
• The contingency budget is going down from $5.3 million to $4.5 million, a $800,000 saving.

Personnel costs are going up due to a combination of new hires and pay rises, but the average annual pay rise will be halved from 4% to 2%, saving $1.3 million, ICANN documentation states.
Headcount is expected to level out at about 425, up from the current 400, by the end of FY19.
The travel budget is going down due to a combination of cuts to services provided at the three annual meetings and the number of people ICANN reimburses for going to them.
The Fellows program — sometimes criticized for giving people what look like free vacations for little measurable return — is seeing the biggest headcount cut here. ICANN will only pay for 30 Fellows to go its meetings in FY19, half the level of FY18. The Next Gen program, a similar outreach program for yoof participants, goes down to 15 people from 20.
The Governmental Advisory Committee will get its number of funded seats reduced by 10 to 40. The ALAC and the ccNSO also each lose a few seats. Other constituencies are unaffected.
At the meetings themselves, translation is to be scaled back to be provided on an as-requested basis, rather than automatically translating everything into all six UN languages. Key sessions will continue to have live interpretation.
Outside of the three main meetings, ICANN is pulling back on plans to expand its irregular “capacity building” workshops in “under-served” areas of the world.
It’s also slashing the “additional budget request” budget by 50%.
In terms of compliance, a proposed Technical Compliance Monitoring system that was going to be built this year — a way to make sure gTLD registries and registrars are stable and secure — appears to be at risk of being deprioritized.
ICANN said it “will develop an implementation plan in due time, depending on the RFP results and, if needed, work with the Board to identify necessary resources and funds to support implementation of the project.”
The documents published today are now open for public comment until March 8.
The cuts I’ve reported here can be found from page 19 of this document (pdf).
The reason for the cutbacks is that ICANN’s revenue isn’t growing as fast as it once did, due to the slower than expected growth of the domain name industry in general. I’ll get to that a later article.

A new gTLD kills itself off for the second time

British pharmacy chain Boots has applied to ICANN to terminate its dot-brand contract for the second time.
The company asked for its .boots Registry Agreement, signed in 2015, to be ended in December and ICANN opened the request for public comment this week.
What’s weird about the request is that Boots had already asked for self-termination last April, but that request was subsequently withdrawn by the company.
Boots seems to have changed its mind, twice, in a year.
As I noted first time around, .boots was the first example of a dot-brand that also matches a generic class of goods to chose the easy way out.
It’s quite likely the two-year freeze on re-applying for the string, should anyone want to, will be over by the time the next new gTLD application window opens.
.boots only had the contractually mandated placeholder domain nic.boots live.

ICANN blocks 1.5 million domains, including some three-letter names

A million and a half domain names, including many potential valuable three and four-letter strings, have been been given special protection across all gTLDs under a new ICANN policy.
The long-discussed, highly controversial reservation of the names and acronyms of various intergovernmental and non-governmental organizations has become official ICANN Consensus Policy and will be binding on all gTLD registries and registrars from August this year.
The policy gives special protection to (by my count) 1,282 strings in each of the (again, by my count) 1,243 existing gTLDs, as well as future gTLDs. That comes to over 1.5 million domains.
The strings match the names, and sometimes the acronyms and abbreviations, of recognized Intergovernmental Organizations (IGOs) and International Non-Governmental Organizations (INGOs) as well as the International Olympic Committee, Red Cross, Red Crescent and related movements.
These are all organizations whose names are protected by international law but not necessarily by trademarks.
Protected strings run from obscurities such as “europeanbankforreconstructionanddevelopment” and “internationalunionfortheprotectionofnewvarietiesofplants” to “can”, “eco” and “fao”.
All gTLDs, including legacy TLDs such as .com, are affected by the policy.
The full list of protected strings can be found here.
Any of the Red Cross, IOC and IGO strings already registered will remain registered, and registries are obliged to honor renewal and transfer requests. Nobody’s losing their domains, in other words. But if any are deleted, they must be clawed back and reserved by the registry.
The protected organizations must be given the ability to register their reserved matching names should they wish to, the policy states.
Registries will be able to sell the acronyms of protected INGOs, but will have to offer an “INGO Claims Service”, which mirrors the existing Trademark Claims service, in gTLDs that go live in future.
The policy was developed by ICANN’s Generic Names Supporting Organization and approved by the ICANN board of directors all the way back in April 2014 and has been in implementation talks ever since.
It’s the 14th Consensus Policy to be added to ICANN’s statute book since the organization was formed 20 year ago.
Registries and registrars have until August 1 to make sure they’re compliant. Consensus Policies are basically incorporated into their contracts by reference.
Work on IGO/INGO protections is actually still ongoing. There’s a GNSO Policy Development Process on “curative” rights for IGOs and INGOs (think: UDRP) that is fairly close to finishing its work but is currently mired in a mind-numbing process debate.
UPDATE: This post was updated January 17, 2018 to correct the number of reserved strings and to clarify how INGO names are treated by the policy.

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.

GoDaddy and DomainTools scrap over Whois access

GoDaddy has seriously limited DomainTools’ access to its customers’ Whois records, pissing off DomainTools.
DomainTools CEO Tim Chen this week complained to DI that its access to Whois has been throttled back significantly in recent months, making it very difficult to keep its massive database of domain information up to date.
Chen said that DomainTools is currently only able to access GoDaddy’s Whois over port 43 at about 2% of the rate it had previously.
He said that this has been going on for about six months and that the market-leading registrar has been unresponsive to its requests to have previous levels restored.
“By throttling access to the data by 98% they’re defeating the ability of security practitioners to get data on GoDaddy domains,” Chen said. “It’s particularly troublesome because they [GoDaddy] are such a big part of DNS.”
“We have customers who say the quality of GoDaddy data is just degrading across the board, either through direct look-ups or in some of the DomainTools products themselves,” he said.
DomainTools customers include security professionals trying to hunt down the source of attacks and intellectual property interests trying to locate pirates and cybersquatters.
GoDaddy today confirmed to DI that it has been throttling DomainTools’ Whois access, and said that it’s part of ongoing anti-spam measures.
In recent years there’s been an increase in the amount of spam — usually related to web design, hosting, and SEO — sent to recent domain registrants using email addresses harvested from new Whois records.
GoDaddy, as the market-share leader in retail domain sales, takes a tonne of flak from customers who, unaware of standard Whois practice, think the company is selling their personal information to spammers.
This kind of Twitter exchange is fairly common on GoDaddy’s feed:

Being bombarded by web developers after purchasing domain frm @GoDaddy
I paid for that domain and u selling my personal info like anything.gotta switch frm godaddy.

— Vikas Rawat (@VikasRa87555925) January 12, 2018

While GoDaddy is not saying that DomainTools is directly responsible for this kind of activity, throttling its port 43 traffic is one way the company is trying to counter the problem, VP of policy James Bladel told DI tonight.
“Companies like [DomainTools] present a challenge,” he said. “While we may know these folks, we don’t know who their customers are.”
But that’s just a part of the issue. GoDaddy was also concerned about the amount of resources DomainTools was consuming, and its own future legal responsibilities under the European Union’s forthcoming General Data Protection Regulation.
“When [Chen] says they’re down to a fraction or a percentage of what they had previously, well what they had previously was they were updating and archiving Whois almost in real time,” Bladel said. “And that’s not going to fly.”
“That is not only, we feel, not congruent with our responsibilities to our customers’ data, but it’s also, later on down the road, exactly the kind of thing that GDPR and other regulations are designed to stop,” he said.
GDPR is the EU law that, when it fully kicks in in May, gives European citizens much more rights over the sharing and processing of their private data.
Bladel added that DomainTools is still getting more Whois access than other parties using port 43.
“They have a level of access that is much, much higher than what they would normally have as a registrar,” he said, “but much lower than I think they want, because they want to effectively download and keep current the entirety of the Whois database.”
I’m not getting a sense from GoDaddy that it’s likely to backtrack on its changes.
Indeed, the company also today announced that it from January 25 it will start to “mask” key elements of Whois records when queried over port 43.
GoDaddy told high-value customers such as domainers today that port 43 queries will no longer return the registrant’s first name, last name, email address or phone number.
Bulk Whois users such as registrars (and, I assume, DomainTools) that have been white-listed via the “GoDaddy Port43 Process” will continue to receive full records.
Its web-based Whois, which includes a CAPTCHA gateway to prevent scraping, will continue to function as normal.
Bladel said that these changes are NOT related to GDPR, nor to the fact that ICANN said a couple months back that it would not enforce compliance with Whois provisions of the Registrar Accreditation Agreement, subject to certain conditions.

Big changes at DomainTools as privacy law looms

Regular users of DomainTools should expect significant changes to their service, possibly unwelcome, as the impact of incoming European Union privacy law begins to be felt.
Professional users such as domain investors are most likely to be impacted by the changes.
The company hopes to announce how its services will be rejiggered to comply with the General Data Protection Regulation in the next few weeks, probably in February, but CEO Tim Chen spoke to DI yesterday in general terms about the law’s possible impact.
“There will be changes to the levels of service we offer currently, especially to any users of DomainTools that are not enterprises,” Chen said.
GDPR governs how personal data on EU citizens is captured, shared and processed. It deals with issues such as customer consent, the length of time such data may be stored, and the purposes for which it may be processed.
Given that DomainTools’ entire business model is based on capturing domain registrants’ contact information without their explicit consent, then storing, processing and sharing that data indefinitely, it doesn’t take a genius to work out that the new law represents a possibly existential threat.
But while Chen says he’s “very concerned” about GDPR, he expects the use cases of his enterprise customers to be protected.
DomainTools no longer considers itself a Whois company, Chen said, it’s a security services company now. Only about 20% of its revenue now comes from the $99-a-month customers who pay to access services such as reverse Whois and historical Whois queries.
The rest comes from the 500-odd enterprise customers it has, which use the company’s data for purposes such as tracking down network abuse and intellectual property theft.
DomainTools is very much aligned here with the governments and IP lawyers that are pressing ICANN and European data protection authorities to come up with a way Whois data can still be made available for these “legitimate purposes”.
“We’re very focused on our most-important goal of making sure the cyber security and network security use cases for Whois data are represented in the final discussions on how this legislation is really going to land,” he said.
“There needs to be some level of access that is retained for uses that are very consistent with protecting the very constituents that this legislation is trying to protect from a privacy perspective,” he said.
The two big issues pressing on Chen’s mind from a GDPR perspective are the ability of the company to continue to aggregate Whois records from hundreds of TLDs and thousands of registrars, and its ability to continue to provide historical, archived Whois records — the company’s most-popular product after vanilla Whois..
These are both critical for customers responding to security issues or trying to hunt down serial cybersquatters and copyright infringers, Chen said.
“[Customers are] very concerned, because their ability to use this data as part of their incident response is critical, and the removal of the data from that process really does injure their ability to do their jobs,” he said.
How far these use cases will be protected under GDPR is still an open question, one largely to be determined by European DPAs, and DomainTools, like ICANN the rest of the domain industry, is still largely in discussion mode.
“Part of what we need to help DPAs understand is: how long is long enough?” Chen said. “Answering how long this data can be archived is very important.”
ICANN was recently advised by its lawyers to take its case for maintaining Whois in as recognizable form as possible to the DPAs and other European privacy bodies.
And governments, via the Governmental Advisory Committee, recently urged ICANN to continue to permit Whois access for “legitimate purposes”.
DomainTools is in a different position to most of the rest of the industry. In terms of its core service, it’s not a contracted party with ICANN, so perhaps will have to rely on hoping whatever the registries and registrars work out will also apply to its own offerings.
It’s also different in that it has no direct customer relationship with the registrants whose data it processes, nor does it have a contractual relationship with the companies that do have these customer relationships.
This could make the issue of consent — the right of registrant to have a say in how their data is processed and when it is deleted — tricky.
“We’re not in a position to get consent from domain owners to do what we do,” Chen said. “I think where we need to be more thoughtful is whether DomainTools needs to have a process where people can opt out of having their data processed.”
“When I think about consent, it’s not on the way in, because we just don’t have a way to do that, it’s allowing a way out… a mechanism where people can object to their data being processed,” he said.
How DomainTools’ non-enterprise customers and users will be affected should become clear when the company outlines its plans in the coming weeks.
But Chen suggested that most casual users should not see too much impact.
“The ability of anyone who has an interest in using Whois data, who needs it every now and then, for looking up a Whois record of a domain because they want to buy it as a domain investor for example, that should still be very possible after GDPR,” he said.
“I don’t think GDPR is aimed at individual, one-at-a-time use cases for data, I think it’s aimed at scalable abuse of the data for bad purposes,” he said.
“If you’re running a business in domain names and you need to get Whois at significant scale, and you need to evaluate that many domains for some reason, that’s where the impact may be,” he said.
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