US scraps fucking stupid “seven dirty words” ban

Neustar and the US government have agreed to dump their longstanding ban on profanity in .us domains.
A contract change quietly published in July has now made it possible to register .us domains containing the strings “fuck”, “cunt”, “shit”, “piss”, “cocksucker”, “motherfucker” and “tits”.
These are the so-called “seven dirty words” popularized by a George Carlin comedy routine and incorporated into US censorship law via the Supreme Court decision Federal Communications Commission v Pacifica Foundation in 1978.
Neustar banned the strings from .us when it originally won the registry contract from the National Telecommunications and Information Administration in 2002, and kept it upon renewal.
Until recently, it was conducting post-registration reviews of new .us domains and suspending names that used the strings in sweary contexts.
However, a July contract amendment (pdf) has released Neustar from this duty, allowing registrants to register whatever the fuck they want.
According to the Electronic Frontier Foundation, the change came about after itself and the Cyberlaw Clinic at Harvard Law School complained to the government about the suspension of the domain fucknazis.us, which registrant Jeremy Rubin had been using to raise money to fight the extreme right in the US.
That domain was registered in late 2017, but Neustar appears to have been discussing whether to repeal the idiotic ban in various policy groups for at least three years.
When Network Solutions was the sole registrar for .com, .org and .net it too banned the seven dirty words but this practice fizzled out after ICANN introduced competition into the registrar space almost two decades ago.

Could a new US law make GDPR irrelevant?

Opponents of Whois privacy are pushing for legislation that would basically reverse the impact of GDPR for the vast majority of domain names.
Privacy advocate Milton Mueller of the Internet Governance Project today scooped the news that draft legislation to this effect is being circulated by “special interests” in Washington DC.
He’s even published the draft (pdf).
Mueller does not call out the authors of the bill by name — though he does heavily hint that DomainTools may be involved — saying instead that they are “the same folks who are always trying to regulate and control the Internet. Copyright maximalists, big pharma, and the like.”
I’d hazard a guess these guys may be involved.
The bill is currently called the Transparent, Open and Secure Internet Act of 2018, or TOSI for short. In my ongoing quest to coin a phrase and have it stick, I’m tempted to refer to its supporters as “tossers”.
TOSI would force registries and registrars to publish Whois records in full, as they were before May this year when ICANN’s “Temp Spec” Whois policy — a GDPR Band-aid — came into effect.
It would capture all domain companies based in US jurisdiction, as well as non-US companies that sell domains to US citizens or sell domains that are used to market goods or services to US citizens.
Essentially every company in the industry, in other words.
Even if only US-based companies fell under TOSI, that still includes Verisign and GoDaddy and therefore the majority of all extant domains.
The bill would also ban privacy services for registrants who collect data on their visitors or monetize the domains in any way (not just transactionally with a storefront — serving up an ad would count too).
Privacy services would have to terminate such services when informed that a registrant is monetizing their domains.
But the bill doesn’t stop there.
Failing to publish Whois records in full would be an “unfair or deceptive act or practice” and the Federal Trade Commission would be allowed to pursue damages against registries and registrars that break the law.
In short, it’s a wish-list for those who oppose the new regime of privacy brought in by ICANN’s response to the General Data Protection Regulation.
While it’s well-documented that the US executive branch, in the form of the National Telecommunications and Information Administration, is no fan of GDPR, whether there’s any interest in the US Congress to adopt such legislation is another matter.
Is this an IP lawyer’s pipe-dream, or the start of a trans-Atlantic war over privacy? Stay tuned!

ICANN closes GoDaddy Whois probe

ICANN has closed its investigation into GoDaddy’s Whois practices with no action taken.
Senior VP of compliance Jamie Hedlund yesterday wrote to David Redl, head of the US National Telecommunications and Information Administration, to provide an update on the probe, news of which first emerged in April.
The NTIA and members of the intellectual property community had complained that GoDaddy was throttling Whois access over port 43 and that it was masking certain fields in the output.
That was when GoDaddy and the rest of the ICANN-regulated industry was working under the old rules, before the new temporary Whois policy had been introduced to comply with the EU General Data Protection Regulation.
Hedlund told Redl in a letter (pdf):

Based on our review and testing (including outside of ICANN’s network), GoDaddy is not currently masking WHOIS data or otherwise limiting access to its WHOIS services. Consequently, the complaints related to GoDaddy’s masking of certain WHOIS fields, rate limiting, and whitelisting of IP addresses have been addressed and closed.

GoDaddy had said earlier this year that it was throttling access over port 43 in an attempt to reduce the availability of Whois data to the spammers that have been increasingly plaguing its customers with offers of web site development and search engine optimization services.

US asks if it should take back control over ICANN

The US government has asked the public whether it should reverse its 2016 action to relinquish oversight of the domain name system root.
“Should the IANA Stewardship Transition be unwound? If yes, why and how? If not, why not?”
That’s the surprisingly direct question posed, among many others, in a notice of inquiry (pdf) issued yesterday by the National Telecommunications and Information Administration.
The inquiry “is seeking comments and recommendations from all interested stakeholders on its international internet policy priorities for 2018 and beyond”. The deadline for comments is July 2.
The IANA transition, which happened in September 2016, saw the NTIA remove itself from the minor part it played, alongside meatier roles for ICANN and Verisign, in the old triumvirate of DNS root overseers.
At the handover, ICANN baked many of its previous promises to the US government into its bylaws instead, and handed oversight of itself over to the so-called Empowered Community, made up of internet stakeholders of all stripes.
The fact that the question is being asked at all would have been surprising not too long ago, but new NTIA chief David Redl and Secretary of Commerce Wilbur Ross expressed their willingness to look into a reversal as recently as January.
Back then Redl told Congresspeople, in response to questions raised primarily by Senator Ted Cruz during his confirmation process:

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.

Cruz had objected to the transition largely based on his stated (albeit mistaken or disingenuous) belief that it gave China, Iran and a plethora of bad guys control over Americans’ freedom of speech, something that has manifestly failed to materialize.
But in the meantime another big issue has arisen — GDPR, the EU’s General Data Protection Regulation — which is in the process of eroding access rights to Whois data, beloved of US law enforcement and intellectual property interests.
NTIA is known to be strongly in favor of retaining access to this data to the greatest extent possible.
The notice of inquiry does not mention Whois or GDPR directly but it does ask several arguably related questions:

A. What are the challenges to the free flow of information online?
B. Which foreign laws and policies restrict the free flow of information online? What is the impact on U.S. companies and users in general?
C. Have courts in other countries issued internet-related judgments that apply national laws to the global internet? What have been the practical effects on U.S. companies of such judgements? What have the effects been on users?

NTIA’s statement announcing the inquiry prominently says that the agency is “working on” items such as “protecting the availability of WHOIS information”.
It also says it “has been a strong advocate for the multistakeholder approach to Internet governance and policy development”.
While GPDR and Whois are plainly high-priority concerns for NTIA, it’s beyond my ken how reversing the IANA transition would help at all.
GDPR is not ICANN policy, after all. It’s a European Union law that applies to all companies doing business in Europe.
Even if the US were to fully nationalize ICANN tomorrow and rewrite Whois policy to mandate the death penalty for any contracted party that refused to openly publish full Whois records, that would not make GDPR go away, it would probably just kick off a privacy trade war or mean that all US contracted parties would have to stop doing business in Europe.
That sounds like an extreme scenario, but Trump.
The NTIA’s inquiry closes July 2, so if you think the transition was a terrible idea or a wonderful idea, this is where to comment.

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 Trump appointee slams ICANN after security group shutdown

Not even a month into the job, the US official with most direct responsibility over domain name policy has criticized ICANN for shutting down a security working group.
David Redl, the new assistant secretary at the National Telecommunications and Information Administration, wrote to ICANN (pdf) last week to complain about its board unilaterally shutting down, temporarily, its supposedly independent Security, Stability and Resiliency of the DNS Review team.
He wrote that the action “calls into question” ICANN’s commitment to transparency and accountability, writing:

Everything documented to date about these reviews stresses the importance of openness, transparency and community consultation. Unfortunately, it seems that with the October 28th action, the ICANN Board violated these principles by substituting its judgement for that of the community.

SSR-2, as it is known, is one of the reviews previously mandated by ICANN’s Affirmation of Commitments with the US government (via the NTIA) but which can now be found instead embedded in its bylaws.
The ICANN board of directors temporarily suspended it in October, something like a soft reboot, after growing concerned that it was stepping outside of its mandate and that its members lacked expertise.
The move attracted broad criticism and it would be disingenuous of me to suggest that Redl’s position is a controversial one — you’d be hard pressed to find any section of the community that wholeheartedly supports the board’s action.
Indeed, the US representative to the Governmental Advisory Committee voiced similar concerns at the ICANN meeting in Abu Dhabi in late October, prior to Redl’s confirmation to the NTIA job.
Redl took the post November 21, having been nominated by Donald Trump back in May, replacing Obama appointee Larry Strickling, who left the agency in January.
He’s the first NTIA chief since ICANN’s inception not to enjoy the special position of power over ICANN granted by the old IANA contract, which was scrapped in September 2016.

US “threatens” Costa Rica over Pirate Bay domains

The US government has been threatening to “close down” Costa Rica’s .cr registry over its refusal to take down a Pirate Bay domain name, according to the registry.
Representatives of the US embassy in Costa Rica have been badgering NIC.cr to take down thepiratebay.cr since 2015, according to a letter from Pedro León Azofeifa, president of Academia Nacional de Ciencias, which runs the registry.
The letter claims:

These interactions with the United States Embassy have escalated with time and include great pressure since 2016 that is exemplified by several phone calls, emails and meetings urging our ccTLD to take down the domain, even though this would go against our domain name policies

According to the letter, a US official “has mentioned threats to close our registry, with repeated harassment regarding our practices and operation policies and even personal negative comments directed to our Executive Director”.
The letter was sent to the chair of ICANN’s Governmental Advisory Committee 10 days ago, CC’d to senior ICANN, Costa Rican and US governmental figures, and has been circulated this week in the Latin American domain name community.
The form of the alleged threats to close the registry is not clear, but it should be noted that prior to October 1 last year the US Department of Commerce, via its now-relinquished oversight of ICANN, played a key role in the administration of the DNS root zone.
The Pirate Bay is of course a popular directory of BitTorrent links largely used to disseminate pirated copies of movies and music, much of it American-made.
The site has been TLD-hopping for years, as registries around the world shut down its domains for violations of their own local rules. It has been live on thepiratebay.cr since December 2014, when its Swedish operation was shut down by authorities.
The NIC.cr letter says that its own policies follow international “best practices” and allow it to take down domains when presented with a Costa Rican court order, but that “the pressure and harassment [from the US] to take down the domain name without its proper process and local court order persists”.
The US Department of Commerce even pressured its Costa Rican counterpart to investigate NIC.cr, but that probe concluded that the registry was acting within its procedures, according to the letter.
It’s not the first attempt to get rid of the Pirate Bay this year.
Public Interest Registry in February announced a “UDRP for copyright” proposal that would allow copyright holders to have piracy disputes heard by independent arbitrators. It looked like a way to get unloved thepiratebay.org domain taken down without PIR having to take unilateral action.
That proposal was shelved after an outcry from the industry and civil rights watchdogs.
In April, one of the Pirate Bay’s founders launched a piracy-friendly domain registration service.
Just this week, the European Court of Justice ruled, after seven years of legal fights, that the Pirate Bay infringes copyright, raising the possibility of the site being blocked in more European countries.
The NIC.cr letter is dated June 6. It has not yet been published by ICANN or the GAC.

Trump nominee open to retaking ICANN oversight role

The incoming head of the US Department of Commerce has indicated that it is unlikely he’ll try to reestablish the US government’s unique oversight of ICANN, at least in the short term.
But at his confirmation hearing in Congress yesterday, Trump nominee for secretary of commerce Wilbur Ross said he’d be open to ideas about how the US could increase its power over ICANN.
He was responding to a question from Ted Cruz, the Texas senator who made halting the IANA transition one of his key concerns last year.
Cruz, framing the question in such a way as to suggest ICANN is now in the hands of an intergovernmental consortium (which it is not) asked Ross whether he was committed to preventing censorious regimes using ICANN to hinder Americans’ freedom of speech.

Ross replied:

As such a big market and really as the inventors of the Internet, I’m a little surprised that we seem to be essentially voiceless in the governance of that activity. That strikes me as an intellectually incorrect solution. But I’m not aware of what it is that we actually can do right now to deal with that. If it exists, if some realistic alternative comes up, I’d be very interested.

His response also mischaracterizes the power balance post-transition.
The US is not “essentially voiceless”. Rather, it has the same voice as every other government as a member of the Governmental Advisory Committee.
Its role is arguably still a lot more powerful than other nations, given that ICANN is now bylaws-bound to remain headquartered in California and under US jurisdiction.
As head of Commerce, Ross will have authority over the National Telecommunications and Information Administration, the agency most directly responsible for dealing with ICANN and domain name issues in general.
NTIA itself will to the best of my knowledge still be headed by assistant secretary Larry Strickling, who handled the IANA transition from the US government side. (UPDATE: this may not be correct)
Ross, 79, is a billionaire investor who made most of his estimated $2.5 billion fortune restructuring bankrupt companies in the coal and steel industries.

ICANN retires Affirmation of Commitments with US gov

ICANN has terminated its last formal oversight link with the US government.
Late last week, ICANN chair Steve Crocker and Larry Strickling, assistant secretary at the US National Telecommunications and Information Administration mutually agreed to retire the seven-year-old Affirmation of Commitments.
The AoC, negotiated during the tail end of Paul Twomey’s leadership of ICANN and signed by successor Rod Beckstrom, laid out ICANN’s responsibilities to the US government and, to a lesser extent, vice versa.
It included, for example, ICANN’s commitments to openness and transparency, its promise to remain headquartered in California, and its agreement to ongoing reviews of the impact of its actions.
Ongoing projects such as the Competition and Consumer Trust Review originate in the AoC.
The rationale for concluding the deal now is that most of significant provisions of the AoC have been grandfathered into ICANN’s revised bylaws and other foundational documents following the IANA transition, which concluded in October.
Reviews such as the CCT and the lock on its California HQ are now in the bylaws and elsewhere, ICANN said in a blog post.
It’s worth mentioning that the US gets a new administration led by Donald Trump in a little over a week, so it probably made sense to get the AoC out of the way now, lest the new president do something insane with it.
The letters from Crocker and Strickling terminating the deal can be read together here (pdf).