This is the second post in our series on the ICANN 63 conference that was held in Barcelona in October 2018. Before diving in, we recommend taking a look at our recap of the EPDP team’s work leading up to and during the conference. You can watch this space for the final post in the series, which will cover ICANN work unrelated to the GDPR.
ICANN’s Temporary Specification requires registrars to provide a means for third parties (such as law enforcement agencies) to access a registrant’s personal data when there is a legitimate legal reason to do so. OpenSRS met this requirement by introducing our Tiered Access directory, but we remain hopeful that an industry-wide solution will be developed.
Over the last several months, the idea of a unified access model, or “UAM,” has been floating around the ICANN community. With a UAM, the process for accessing registration data would be standardized, with a defined set of eligible users and rules for what data they may obtain. This could be handled at the credentialing level, with registrars and registries required to respect the accreditations provided by a central governing body, or it could go as far as to require that all Whois data is held by and accessed through ICANN itself.
The advantage to a unified model is that parties with legitimate reasons to access registration data could do so in a streamlined manner, and registrars would (in theory) be able to trust the credentials of any user working within this model.
This contrasts the current reality: today, in order to access registration data for domains, third parties must each independently obtain credentials from the appropriate registrar or registry. There is no central authority that we can trust to accredit eligible users and no single source that a third party can work with to obtain registration data for domains registered with different providers.
Two ICANN stakeholder groups, the Intellectual Property Constituency (IPC) and the Business Constituency (BC), have been pushing the EPDP team to develop a UAM, as they are concerned that the current decentralized situation is confusing to users, wastes time, and ultimately hinders their constituents’ ability to protect and assert their legal rights. For example, let’s use the case of a commercial litigator trying to send a cease and desist letter for an instance of trademark violation. The IPC and BC groups claim that the attorney needs to start by using the Whois record to determine who owns the offending domain name, but navigating and managing credentials for various registrar portals is a nuisance.
The wider ICANN Community acknowledges the benefits of a unified access model, but also raised significant concerns about implementation. Holding all registrant personal data in a central repository creates a single point of failure for data breaches — if someone gains access to that central source, they can access the contact data for every gTLD domain. This may also put ICANN themselves at risk of liability if such a breach were to occur.
Even if the data itself were decentralized, remaining held by each individual registrar, we’re left with concerns about having a single organization (such as ICANN) control accreditation. Registrars and registries are legally accountable for how and why the data they hold is shared, but in using a UAM, they’d be relying on the credentialing body to require demonstration of legal basis for accessing registration data (hopefully every time data is requested for a given domain, since the legal basis must be specific to each piece of data). And, as illustrated by examples like our own litigation with ICANN over the collection of technical contact data, what is acceptable as a legitimate legal basis can be somewhat subjective. If ICANN’s new contractual requirements require participation in a UAM, registrars and registries may be obligated to provide registration data to third parties in cases where they are not satisfied that a sufficient legal basis has been demonstrated. This is similar to the difficult balancing of more general GDPR requirements against ICANN contractual obligations — the registrar or registry is put in the difficult position of needing to choose between breaching their contract or potentially violating the law.
What happens next?
One of the core requirements in the EPDP team charter is to create a system for providing access to registration data. There are “gating questions” laid out in the charter, which will allow the team to “establish a baseline set of data that is collected for each domain name registration,” determine who should hold this data, and how it can be shared and processed. These gating questions must be answered before the EPDP team can consider the question of how third-party access to data will be granted. So until recently, discussions about the “how” had been pushed down the road when they came up during EPDP meetings. But now the EPDP Initial Report is out and, unfortunately, there is no formal consensus on the answers to the gating questions. In light of this, some members of the team have resumed pushing to discuss access as soon as possible, specifically before the Final Report is issued.
The EPDP team will be meeting in person at the end of January 2019, and we’re eagerly watching to see what happens there, as well as how they respond to the feedback that we and other members of the ICANN community provide in response to their Initial Report. And as this post went to “press,” ICANN announced the assembly of a ten-man “Technical Study Group on Access to Non-Public Registration Data” (Domain Incite has a solid summary of this development). It’s unclear how ICANN selected the members of this team or how their work will fit into or align with the current technical work and in-progress policy development process. Both of these unknowns are extremely worrying. This type of group is unprecedented and their remit and charter are currently opaque. We remain committed to the multi-stakeholder process and will continue to hold ICANN Org accountable to it.