Court denies ICANN’s GDPR injunction against Tucows

A German court has refused ICANN’s request for a GDPR-related injunction against Tucows’ local subsidiary EPAG, throwing a key prong of ICANN’s new Whois policy into chaos.
EPAG now appears to be free to stop collecting contact information for each domain’s administrative and technical contacts — the standard Admin-C and Tech-C fields.
The ruling may even leave the door open for registrars to delete this data from their existing Whois databases, a huge blow to ICANN’s Whois compliance strategy.
According to an ICANN-provided English translation of the ruling (pdf), the Bonn judges (whose names are redacted — another win for GDPR?) decided that the Admin-C and Tech-C records are unnecessary, because they can be (and usually are) the same person as the registrant.
The judges said that if the additional contact names were needed, it would have historically been a condition of registration that three separate people’s data was required.
They wrote that this “is proof that any data beyond the domain holder — different from him — was not previously necessary”.
“Against the background of the principle of data minimization, the Chamber is unable to see why further data sets are needed in addition to the main person responsible,” they wrote.
Data minimization is a core principle of GDPR, the General Data Protection Regulation, which came into force in the EU less than a week ago. Tucows and ICANN have different interpretations on how it should be implemented.
The judges said that the registrant’s contact information should be sufficient for any criminal or security-related investigations, which had been one of ICANN’s key claims.
They also said that ICANN’s attempt to compare Whois to public trademark databases was irrelevant, as no international treaties govern Whois.
If the ruling stands, it means registries and registrar in at least Germany could no longer have to collect Admin-C and Tech-C contacts.
Tucows had also planned to delete this data for its existing EPAG registrations, but had put its plan on hold ahead of the judge’s ruling.
The ruling also gives added weight to the part of ICANN’s registry and registrar agreements that require contracted parties to abide by local laws.
That’s at the expense of the new Temporary Policy governing Whois introduced two weeks ago, which still requires Admin-C and Tech-C data collection.
There was no word in ICANN’s statement on the ruling last night as to the possibility of appealing.
But the org seized on the fact that the ruling does not directly state that EPAG would be breaching GDPR rules by collecting the data. General counsel John Jeffrey is quoted as saying:

While ICANN appreciates the prompt attention the Court paid to this matter, the Court’s ruling today did not provide the clarity that ICANN was seeking when it initiated the injunction proceedings. ICANN is continuing to pursue the ongoing discussions with the European Commission, and WP29 [the Article 29 Working Party], to gain further clarification of the GDPR as it relates to the integrity of WHOIS services.

Tucows has yet to issue a statement on the decision.
It may not be the last time ICANN resorts to the courts in order to seek clarity on matters related to GDPR and its new Temporary Policy.

Million-euro Tucows GDPR lawsuit may not be ICANN’s last

ICANN has filed a lawsuit against a Tucows subsidiary in Germany in an effort to resolve a disagreement about how new European privacy law should be interpreted, and according to ICANN’s top lawyer it may not be the last.
The organization said late Friday that it is taking local registrar EPAG to court in Bonn, asking that the registrar be forced to continue collecting administrative and technical contact information for its Whois database.
According to an English translation of the motion (pdf), and to conversations DI had with ICANN general counsel John Jeffrey and Global Domains Division president Akram Atallah over the weekend, ICANN also wants an injunction preventing Tucows from deleting these fields from current Whois records.
At its core is a disagreement about how the new General Data Protection Regulation should be interpreted.
Tucows plans to continue collecting the registrant’s personal information, but it sees no reason why it should also collect the Admin-C and Tech-C data.
Policy director Graeme Bunton argues that in the vast majority of cases the three records are identical, and in the cases they are not, the registrar has no direct contractual relationship with the named individuals and therefore no business storing their data.
ICANN counters that Admin-C and Tech-C are vital when domain owners need to be contacted about issues such as transfers or cyber-attacks and that the public interest demands such records are kept.
Its new Temporary Policy — which is now a binding contractual commitment on all registries and registrars — requires all this data to be collected, but Tucows feels complying with the policy would force it to break European law.
“Strategically, we wanted to make sure we don’t let the Whois and the pubic interest get harmed in a way that can’t be repaired,” Atallah said.
“The injunction is to actually stop any registrar from not collecting all the data and therefore providing the opportunity for the multistakeholder model to work and come up with a long-term plan for Whois,” he said. “”We don’t want to have a gap.”
Jeffrey said that the suit was also necessary because ICANN has not received sufficient GDPR guidance from data protection authorities in the EU.
EPAG is not the only registrar planning to make the controversial changes to data collection. There are at least two others, at least one of which is based in Germany, according to Jeffrey and Atallah.
The German ccTLD registry, DENIC, is not under ICANN contract but has also said it will no longer collect Admin-C and Tech-C data.
They may have all taken their lead from the playbook (pdf) of German industry group eco, which has been telling ICANN since at least January that admin and tech contacts should no longer be collected under GDPR.
That said, Tucows chief Elliot Noss is a vocal privacy advocate, so I’m not sure how much leading was required. Tucows was also a co-developer (pdf) of the eco model.
The injunction application was filed the same day GDPR came into effect, after eleventh-hour talks between ICANN legal and Tucows leadership including chief legal officer Bret Fausett hit an impasse.
Tucows has agreed to freeze its plan to delete its existing Admin-C and Tech-C stored data, however.
The suit has a nominal million-euro value attached, but I’m convinced ICANN (despite its budget crunch) is not interested in the money here.
It’s my sense that this may not be the last time we see ICANN sue in order to bring clarity to GDPR.
Recently, Jeffrey said that ICANN would not tolerate contracted parties refusing to collect full Whois data, and also that it would not tolerate it when they decline to hand the data over to parties with legitimate interests.
The German lawsuit does not address this second category of non-compliance.
But it seems almost certain to me that intellectual lawyers are just days or weeks away from starting to file compliance tickets with ICANN when they are refused access to this data, which could lead to additional litigation.
“Whether it would result in a lawsuit is yet to be determined,” Jeffrey told DI yesterday. “The normal course would be a compliance action. If people aren’t able to gain access to information they believe that they have a legitimate right to access they will file compliance complaints. Those compliance complaints will be evaluated.”
“If it’s a systematic decision not to provide that access, that would violate the [Temporary Policy],” he said. “If they indicated it was because of their interpretation of the law, then it could result in us asking questions of the DPAs or going to court if that’s the only action available.”
The injunction application is a “one-sided filing”, which Jeffrey tells me is a feature of German law that means the court could issue a ruling without requiring EPAG/Tucows to appear in court or even formally respond.
The dispute therefore could be resolved rather quickly — this week even — by the court of first instance, Jeffrey said, or it could be bounced up to the European Court of Justice.
Given how new GDPR is, and considering the wider implications, the latter option seems like a real possibility.

After outcry, ICANNWiki to get ICANN funding next year

ICANNWiki will continue to get funding from its namesake, after community members complained about ICANN’s plan to abandon its $100,000 annual grant.
The independent wiki project will get $66,000 instead in the year beginning July 1, which will drop to $33,000 in ICANN’s fiscal 2020.
The funding will then disappear completely.
It’s a slight reprieve for ICANNWiki, which uses the money not only for its 6,000-article web site but also in-person outreach at events around the world.
The organization had complained about the plans to drop funding back in December, and fans of the site later called on ICANN to change its mind.
Supporters say the site fulfills a vital educational service to the ICANN community.
ICANNWiki also receives over $60,000 a year from corporate sponsors.
ICANN has also offered a reprieve to its Fellowship program in the new draft budget, reducing the number of people accepted into the program by fewer than expected.
It said in January it would slash the program in half, from 60 people per meeting to 30. That number will now drop to 45, at a cost of $151,000.
As discussed in this February article, the community has differing opinions about whether the program is an important way to on-board volunteers into ICANN’s esoteric world, or a way for freeloaders to vacation in exotic locations around the globe.

ICANN slashes new gTLD income forecast AGAIN

ICANN has yet again been forced to lower its funding expectations from new gTLDs, as the industry continues to face growth challenges.
In its latest draft fiscal year 2019 budget, likely to be approved at the end of the month, it’s cut $1.7 million from the amount it expects to receive in new gTLD transaction fees.
That’s even after cutting its estimates for fiscal 2018 in half just a few months back.
New gTLD registry transaction fees — the $0.25 collected whenever a new gTLD domain is registered, renewed or transferred, provided that the gTLD has over 50,000 domains under management — are now estimated at $5.1 million for FY19
That’s up just $500,000 from where it expects FY18, which ends June 30 this year, to finish off.
But it’s down $900,000 or 15% from the $6 million in transaction fees it was forecasting just four months ago.
It’s also still a huge way off the $8.7 million ICANN had predicted for FY18 in March 2017.
Registrar new gTLD transaction fees for FY19, paid by registrars regardless of the size of the TLD, are now estimated to come in at $4.3 million, up $400,000 from the expect FY18 year-end sum.
But, again, that number is down $800,000 from the $5.1 million in registrar fees that ICANN was forecasting in its first-draft FY19 budget.
In short, even when it was slashing its FY18 expectations in half, it was still over-confident on FY19.
On the bright side, at least ICANN is predicting some growth in new gTLD transactions.
And the story is almost exactly reversed when it comes to pre-2012 gTLDs.
For legacy gTLD registry transaction fees — the majority of which are paid by Verisign for .com and .net — ICANN has upped its expectations for FY19 to $49.6 million, compared to its January estimate of $48.7 million (another $900,000 difference, but in the opposite direction).
That growth will be offset by lower growth at the registrar level, where transaction fees for legacy gTLDs are now expected to be $30.2 million for FY19, compared to its January estimate of $30.4 million, a $200,000 deficit.
None of ICANN’s estimates for FY18 transaction fees have changed since the previous budget draft.
But ICANN has also slashed its expectation in terms of fixed fees from new gTLD registries — the $25,000 a year they all must pay regardless of volume.
The org now expects to end FY18 with 1,218 registries paying fees and for that to creep up slightly to 1,221 by the end of FY19.
Back in January, it was hoping to have 1,228 and 1,231 at those milestones respectively.
Basically, it’s decided that 10 TLDs it expected to start paying fees this year actually won’t, and that they won’t next year either. These fixed fees kick in when TLDs are delegated and stop when the contract is terminated.
It now expects registry fixed fees (legacy and new) of $30.5 million for FY19, down from expected $30.6 million for FY18 and and down from its January prediction of $31.1 million.
ICANN’s budget documents can be downloaded here.

ICANN board talking GDPR “litigation”

ICANN’s board of directors is meeting today to discuss its “litigation strategy” concerning the General Data Protection Regulation, the EU privacy legislation due to make Whois unrecognizable come Friday.
Those two words are basically the only item on its agenda for a special board meeting today.
I’ve been unable to squeeze any further information out of ICANN, but I can speculate about a few different things it could mean.
The first thing that springs to mind is a blog post by CEO Goran Marby dated April 12, in which he wrote:

Without a moratorium on enforcement, WHOIS will become fragmented and we must take steps to mitigate this issue. As such, we are studying all available remedies, including legal action in Europe to clarify our ability to continue to properly coordinate this important global information resource. We will provide more information in the coming days.

To my knowledge, no additional information on this “legal action in Europe” has ever been released.
Could ICANN be ready to take a data protection authority to court preemptively, as a test case to insulate the industry against enforcement action from DPAs? Your guess is as good as mine at this stage.
Another possibility, still in speculative territory, is that the board will be discussing the many calls from the industry for some kind of legal or financial indemnification against GDPR-related regulatory actions. I’d assign a relatively low probability to that idea.
A third notion that springs to mind, slightly more realistically, is that the board could simply be discussing how ICANN would defend itself from incoming litigation related to its GDPR response.
It usually takes ICANN a few days to post the results of its board meetings, but on important hot topics it’s not hugely unusual to see same-day publication.

Failure to launch: 10 years-old gTLDs that are still dormant

Over six years after the last new gTLD application window closed, more than one in 10 new gTLDs have yet to launch, even though some have been delegated for over four years.
Once you filter out duplicates, withdrawals and terminations from the original 1,930 applications, there were a maximum of roughly 1,300 potential new gTLDs from the 2012 round.
But, by my calculations, 144 of those have yet to even get around to their sunrise period. Most of those haven’t even filed their launch plans with ICANN yet.
Here’s 10 from that list I’ve picked based on how interesting they appear to me, in no particular order.
Yes, DI is doing listicles now. Hate-mail to the usual address.
.forum
This one’s owned by Jay Westerdal’s Top Level Spectrum, the same company behind .feedback, .realty and others. I quite like the potential of this string — the internet is chock-full of forums due to the easy availability of open-source forum software — but so far nobody’s gotten to register one. It was delegated back in June 2015 and doesn’t have a published launch plan as yet. An FAQ reading just saying “Jay was here !!!!! Test deploy..delete me later…” has been up on its site since at least last September. TLS is also sitting on .contact and .pid (for “personal ID”) with no launch dates in sight.
.scholarships
Owned by Scholarships.com, there’s a whiff of the defensive about this one. It’s been in the root since March 2015 but its site states the registry “is still finishing launch plans and will provide updates as they become available”. Scholarships.com is a site that connects would-be higher education students to potential sources of funding. It’s difficult to imagine many ways the matching gTLD could possibly help in that mission.
.giving
JustGiving, the UK-based charity campaign aggregator, won this gTLD and had it delegated in August 2015, but seemingly still hasn’t figured out what it wants to do with it. It’s not a dot-brand, so it’s presumably mulling over ways to give .giving domains to fundraisers in a way that does not compromise credibility. Whatever its plans, it’s taking its sweet time over them.
.cancerresearch
This is a weird one. Delegated four years ago, the Australian Cancer Research Foundation rather quickly went live with a bunch of interlinked .cancerresearch web sites, using its contractually permitted allotment of promotional domains. Contractually, it’s not a dot-brand, but it’s basically acting like one, having never actually given ICANN any info about sunrise, eligibility, trademark claims, general availability, etc. Technically, it’s still pre-launch, and I can’t see any reason why it would want to budge from that status. Huge loophole in the ICANN rules?
.beauty
Another whiff of gaming here. International woman-shaming powerhouse L’Oreal still has no announced plans to launch .beauty, .skin or .hair, which it had originally wanted to run as so-called “closed generics” (presumably to keep the keywords out of the hands of competitors). Of its small portfolio of generic gTLDs, delegated in 2016, it has actually launched .makeup already, with a $6,000 retail price and a strategy seemingly based on registry-owned domains matching the names of makeup-focused social media influencers. At least it’s actually selling names, even if nobody’s bought one yet.
.budapest
One of three city TLDs that were delegated back in 2014 but have yet to start selling domains. MMX is to run it in partnership with the local government of the Hungarian city, if it ever gets off the ground. Madrid (.madrid) and Zurich (.zuerich) have both also yet to roll out, although Zurich has settled on early 2019 for its launch.
.fan
Regular DI readers won’t be surprised to see this one on the list. In what may turn out to be a shocking waste of money, .fans registry Asiamix Digital acquired the singular .fan from Donuts back in 2015 and promptly let it sit idle for the next three years. Currently, with .fans turning out to be a flop, Asiamix has money troubles and I wouldn’t be surprised to see it under new ownership before too long. It’s not a terrible string, so there’s some potential there.
.ком, etc
.ком is one of 11 internationalized domain name transliterations of .com — .कॉम, .ком, .点看, .คอม, .नेट, .닷컴, .大拿, .닷넷, .コム, .كوم and .קוֹם — that Verisign had delegated back in 2015. To date, only the Japanese .コム has launched, and the registry reportedly arsed it up quite badly. Records show .コム peaked at over 28,000 names and sits at fewer than 7,000 today. None of the remaining IDNs have launch dates attached.
Anything owned by Google or Amazon
When it comes to sitting on dormant gTLDs, you can’t top Google and Amazon for sheer numbers. Google has 19 strings in pre-launch states right now, while Amazon has a whopping 34. Amazon is letting the likes of .free, .wow, .now, .deal, .save and .secure sit idle, while Google is still stroking its chin on the likes of .eat, .meme, .fly and .channel. At the snail’s pace these companies roll out gTLDs, I wouldn’t be surprised if some of these strings never hit the market.
.bom
Portuguese for “.good”, .bom was delegated to local ccTLD registry Nic.br in 2015 but has no published launch dates and no content on its nic.bom registry web site. I’d say more, but I expect a certain prolific DI commenter could do a better job of it, so I’ll turn it over to him…

Donuts freezes .place gTLD ahead of new geofencing rules

Donuts has taken its .place gTLD temporarily off the market as it repurposes the space as a restricted zone for “geofencing” related uses.
That’s right, the biggest gTLD portfolio play and historically staunch advocate of open gTLDs is actually planning to introduce eligibility requirements into a currently unrestricted TLD.
Details are light ahead of a formal announcement, but I’m told all new .place registrants will have to agree to use their domains for geofencing purposes.
This looks a bit like it could be a taste of the “innovation” we were all promised from the new gTLD program.
Geofencing refers to systems that divide the world up into fenced-off virtual parcels of land based on GPS coordinates, enabling location-based services.
It’s an area Donuts has been looking at for a while, having invested in early-stage geofencing company GeoFrenzy, since rebranded as Geo.Network, two years ago.
While Donuts puts its new .place model in place — ICANN and registrars have been given the heads-up — it should not be possible to register any new .place domains.
Major registrars such as GoDaddy, Namecheap, Uniregistry and Donuts-owned Name.com were not returning results for .place domains on their storefronts when I checked over the weekend.
Other registrars did still appear to be offering the names, but I did not attempt to register one to check whether the sale would complete.
I gather that the new eligibility requirements will not apply retroactively, so anyone who currently owns a .place name will get to keep it on an unrestricted basis.
There are around 7,000 active .place domains currently.

Registrars want six-month stay on new Whois policy

Registrars representing the majority of the gTLD industry want ICANN to withhold the ban hammer for six months on its new temporary Whois policy.
As I reported earlier today, ICANN has formally approved an unprecedented Temporary Policy that seeks to bring the Whois provisions of its contracts into compliance with the EU’s General Data Protection Regulation.
It comes into effect next Friday, May 25, but it contains a fair few items that will likely take longer for registrars to implement.
While ICANN’s top lawyer has indicated that ICANN Compliance will act as reasonably as possible about enforcing the new policy, registrars want a moratorium of at least six months.
In a letter (pdf) dated May 16 (before the policy was voted through, but while its contents were broadly known), Registrar Stakeholder Group chair Graeme Bunton wrote:

Any temporary specification adopted now that significantly deviates from previously held expectations and models will be far too late for us to accommodate for a May 25, 2018 implementation date.
For this reason, we ask that any temporary specification include a formal ICANN compliance moratorium, not shorter than six (6) months, providing us an opportunity to conform, to the extent possible, our GDPR implementation with the GDPR-compliant aspects of any ICANN temporary specification

He added that some registrars may need even more time, so they should have the right ask for an extension if necessary.
The letter is signed by Endurance, GoDaddy, Tucows, Blacknight, 1&1, United Domains, NetEarth One and Cloudflare, which together account for most gTLD domains.

ICANN approves messy, unfinished Whois policy

With a week left on the GDPR compliance clock, ICANN has formally approved a new Whois policy that will hit all gTLD registries and registrars next Friday.
The Temporary Specification for gTLD Registration Data represents the first time in its history ICANN has invoked contractual clauses that allow it to create binding policy in a top-down fashion, eschewing the usual community processes.
The policy, ICANN acknowledges, is not finished and needs some work. I would argue that it’s also still sufficiently vague that implementation in the wild is likely to be patchy.
What’s in public Whois?
The policy is clearest, and mostly unchanged compared to previous drafts, when it comes to describing which data may be published in public Whois and which data must be redacted.
If you do a Whois query on a gTLD domain from next week, you will no longer see the name, address, phone/fax number or email address of the registrant, admin or tech contacts.
You will continue to see the registrant’s organization, if there is one, and the country in which they are based, as well as some information about the registrar and name servers.
In future, public RDAP-based Whois databases will have to output “REDACTED FOR PRIVACY” in these fields, but for now they can just be blank.
While the GDPR is only designed to protect the privacy of humans, rather than companies, and only those connected to the European Union, the ICANN policy generally assumes that all registrants will be treated the same.
It will be possible for any registrant to opt out of having their data redacted, if being contactable is more important to them than their privacy.
What about privacy services?
Since the May 14 draft policy, ICANN has added a carve-out for domains that are already registered using commercial privacy/proxy services.
Whois records for those domains are NOT going to change under the new policy, which now has the text:

in the case of a domain name registration where a privacy/proxy service used (e.g. where data associated with a natural person is masked), Registrar MUST return in response to any query full WHOIS data, including the existing proxy/proxy pseudonymized email.

In the near term, this will presumably require registries/registrars to keep track of known privacy services. ICANN is working on a privacy/proxy accreditation program, but it’s not yet live.
So how do you contact registrants?
The policy begins to get more complicated when it addresses the ability to actually contact registrants.
In place of the registrant’s email address in public Whois, registries/registrars will now have to publish an anonymized email address or link to a web-based contact form.
Neither one of these options should be especially complex to implement — mail forwarding is a staple service at most registrars — but they will take time and effort to put in place.
ICANN indicated earlier this week that it may give contracted parties some breathing room to get this part of the policy done.
Who gets to see the private data?
The policy begins to fall apart when it describes granting access to full, unexpurgated, thick Whois records to third parties.
It seems to do a fairly good job of specifying that known quantities such as URS/UDRP providers, escrow providers, law enforcement, and ICANN itself continue to get access.
But it’s fuzzier when it comes to entities that really would like to continue to access Whois data, such as trademark lawyers, security service providers and consumer protection concerns.
While ICANN is adamant that third parties with “legitimate interests” should get access, the new policy does not enumerate with any specificity who these third parties are and the mechanism(s) contracted parties must use to grant such access.
This is what the policy says:

Registrar and Registry Operator MUST provide reasonable access to Personal Data in Registration Data to third parties on the basis of a legitimate interests pursued by the third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the Registered Name Holder or data subject

This appears to give contracted parties the responsibility to make legal judgment calls — balancing the GDPR-based privacy rights of the registrant against the “legitimate interests” of the requester — every time they get a thick Whois request.
The policy goes on to say that when European privacy regulators, the courts, or other legislation or regulation has specifically approved a certain class of requester, ICANN will relay this news to the industry and it will have 90 days to make sure that class gets full Whois access.
But the policy does not specify any formal mechanism by which anyone goes about requesting a thick record.
Do they just phone up the registrar and ask? Does the registrar have to publish a contact address for this purpose? How does the registrar go about confirming the requester is who they say they are? Should they keep white-lists of approved requesters, or approve each request on a domain-by-domain basis? When does the right of a trademark owner outweigh the privacy right of an individual?
None of these questions are answered by the policy, but in a non-binding annex ICANN points to ongoing community work to create an “accreditation and access model”.
That work appears to be progressing at a fair rapid clip, but I suspect that’s largely because the trademarks lawyers are holding the pens and discussions are not following ICANN’s usual consensus-building policy development rules.
When the work is absorbed into the ICANN process, we could be looking at a year or more before something gets finalized.
How will transfers work?
Because Whois is used during the inter-registrar transfer process, ICANN has also had to tweak its Inter-Registrar Transfer Policy to take account of instances where registrars can’t access each other’s databases.
Basically, it’s scrapping the requirement for gaining registrars to obtain a Form of Authorization from the Whois-listed registrant before they start an inbound transfer.
This will remove one hoop registrants have to jump through when they switch registrars (though losing registrars still have to obtain an FOA from them) at the cost of making it marginally easier for domain theft to occur.
What happens next?
ICANN acknowledges, in seven bullet points appended to the policy, that the community has more work to do, mainly on the access/accreditation program.
Its board resolution “acknowledges that there are other implementation items that require further community conversation and that the Board encourages the community to resolve as quickly as possible”.
The board has also asked ICANN staff to produce more explanatory materials covering the policy.
It also temporarily called off its Governmental Advisory Committee consultation, which I wrote about here, after receiving a letter from the GAC.
But the big next step is turning this Temporary Policy into an actual Consensus Policy.
The Temporary Policy mechanism, which has never been used before, is set up such that it has to be renewed by the board every 90 days, up to a maximum of one year.
This gives the GNSO until May 25 next year to complete a formal Policy Development Process. In fact, it will be a so-called “Expedited” PDP or EPDP, that cuts out some of the usual community outreach in order to provide a speedier result.
This, too, will be an unprecedented test of an ICANN policy-making mechanism.
The GNSO will have the Temporary Policy baseline to work from, but the Temporary Policy is also subject to board-level changes so the goalposts may move while the game is being played.
It’s going to be a big old challenge, and no mistake.

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

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

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

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

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

And if there was any doubt remaining, he added:

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

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

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

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

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

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