The ICANN WHOIS system is gone, the process for a GDPR compliant WHOIS has started!

 

After twelve months of endless discussions and a looming deadline, ICANN received information from the Art 29 Working Party. 

The EU Data Protection Authorities will not grant ICANN forbearance regarding the May 25th deadline when it comes to the WHOIS. Again the DPA’s re-confirmed their advise towards ICANN and does not deviate much from the advice they have provided ICANN since 2000.

The full press release from ICANN and the Article 29 WP letter can be read here.

Now that it is official there will be no forbearance regarding WHOIS, which was a silly request to begin with, registrars must shift into gear to get the WHOIS GDPR compliant.

Our solution will look like the screenshot below, though the below is subject to future change, I do not expect our GDPR solution will change drastically.

 

We will continue to display the country code and state field (if provided), due to the fact that it might be relevant for trademark lawyers.

The solution mentioned above is a mix of what ICANN has sent to the Art 29 WP, there is some advice incorporated from the ECO playbook. Last but not least we cherry-picked some elements from the WHOIS output solution by the Dutch Registry SIDN.

SIDN does not publish personal data of the registrants for many years now, so we have a great deal of experience with such WHOIS output and as a result, we have many operational procedures and solutions in place.

 

Reseller lookup tool
Our Reseller lookup tool is available here. We will also mention the link to this tool in the WHOIS output of the Realtime Register WHOIS server.
This tool allows people to look up the domain and the relevant reseller contact information.

As a data processor, we are limited in our role due to data protection laws, and we must refer to the data controller (our reseller) when it comes to domain name inquiries.
I think our lookup tool will be of great assistance for Law Enforcement Agencies, Trademark Lawyers, etc.

Most of our Dutch resellers will be very familiar with the above concept, as reseller data plays a significant role in the WHOIS for .NL domain names.

I expect that the WHOIS will become less relevant on May 25th and will have an effect on transfers.
Expect a blog post about the transfer details within a week.

Also, this blog describes the WHOIS server of Realtime Register, not the WHOIS servers operated by thick registries all over the world. It is possible that while we at a registrar level do not display personal data, a Thick WHOIS registry continues to show the data of your customers in their available public WHOIS…

Realtime Register GDPR TLD matrix is now public.

Last week we received a lot of positive comments regarding our GDPR TLD matrix. And we had a lot of requests to get access to the matrix.
As a push to create more GDPR awareness, we decided to publish our API on the website for the public, including the GDPR TLD matrix.

You can enter the matrix here.

Keep in mind the matrix has been developed with the Realtime Register processes in mind and in some instances cannot be merely be pasted and copied.

One comment which we received a lot last week was:”wow there are so many unknowns.”
While that observation is spot on, it is the reality we all have to deal with in the TLD industry, and it is very annoying that at this stage we still do not have clear answers.
Most registries still have to determine their position on what they will publish in the WHOIS and what not.

So feel free to use the GDPR TLD Matrix.If there is a sense amongst registrars and registries turning the GDPR TLD Matrix into a collaborative effort, feel free to contact me.

I expect to update the matrix over two weeks and add a few more categories plus more information.

Data Protection/GDPR TLD Guidance Matrix

I think this is the first blog where I start with phrases like;

  • We are not done yet
  • Guidance only
  • We are not done yet
  • By no means legal advise
  • Best effort only
  • We are not done yet

While we are not done, we are trying to get this matrix as complete as possible before May 25; we do expect that we will still be updating the matrix way beyond May 25.

Back in 2016, I was under the impression that our industry would work together and come up with solutions to make things easier when it comes to the GDPR.
However, it is April 2018, ICANN is still in chaos, the EU ccTLD registries move at a glacial pace, and the ccTLD registries outside of the EU still have to figure out what the EU GDPR is.

A few months ago we came up with the idea that we should assist our customers when it comes to the GDPR.Over a thousand registries, located all over the world in many different jurisdictions, processing personal data in ways not known to us. At the time, it was like asking the question, how do you put an elephant in a car?

The answer? Put the GDPR and all the data protection laws of the world into the metadata of our API.
https://dm.realtimeregister.com/docs/api/tlds/metadata#privacy

 

At first glance, this looks very complex and confusing, just like the GDPR itself.
When you send an info request on the metadata for the name, “gdprCategory”, it will give you four values depending on the TLD.

  • EU_BASED: Registrations are under EU jurisdiction
  • ADEQUACY: Registrations are in a jurisdiction that provides an adequate level of data protection according to the EU
  • DATA_EXPORT: Registrations are in a jurisdiction without an adequate level of data protection as outlined by the EU. Fundamental rights like the right to be forgotten or erasure do not apply
  • UNKNOWN: Situation unknown

So how does this work?
As I mentioned before we still need to complete this and things are still in motion with a lot of registries, but we can tell you a few things already based on current info and predictions, as such we came up the following suggestions.

  • Caution advised
  • Use privacy protect
  • EU based, whois exposed
  • Safe, data adequacy or EU based

GDPR Advise
Let’s start with the advice called:”Caution advised.”
And be advised these are the most complex TLD’s to register.
We know that these TLDs are outside of the EU and Article 49 is most likely to be relevant for such TLD’s.
In some cases, we do not know what will happen and how the registry in that country will treat the data of your customer.

Our advice, consult a lawyer when your customer wants to register a domain name in a TLD labeled “Caution advised.”
You do not need to worry about this when this is a company registration. Companies (legal entities) are exempt from the GDPR. Make sure you do not use any personal data for such registrations.

Use privacy protect
Rather straightforward advice. We do not know what ICANN will be doing or not. With our privacy protect service you do not have to worry about the following:

  • Consult a lawyer regarding your legal requirements to register a domain name (money saver).
  • The data will not be exported to a “third country.
  • Do you need privacy shield as a legal basis or not?
  • No need to worry about “third parties” having access to your customer’s data outside of the EU.
  • If the right to be forgotten or erasure applies or not?
  • EU GDPR data minimization requirements
  • Can the GDPR data accuracy requirements be exercised or not?
  • The need to ask consent from your customer for every possible data processing (no disruption of registration flows in your shop)

Our advice, use this service whenever you can, it will save you a lot of time and hassle.

EU based, whois exposed.
These registries are EU GDPR compliant. But some of them do expose personal data in the WHOIS. Personally, I do not like this, but there can be a few legal reasons (on a member state level) that such a practice is permitted under the GDPR.
You might want to give your customers a heads-up of such practices as their perception might be different.

Safe, data adequacy or EU based.
My personal favorite.
These TLDs are GDPR compliant and do not expose personal data through the WHOIS. Hassle free; let’s hope the rest will follow soon.

Terms of Service & Privacy notice.
As an extra service, we have included links to the relevant registration contracts and privacy notices. I am aware it is not complete at the moment, but we hope to have most of it ready, before the 25th of May.
Keep in mind, so far we have seen zero new contracts from gTLD registries. I expect that we as a registrar we will have to sign over a thousand contracts just a few weeks before the 25th of May.

So check the matrix regularly to remain up to date.

More information regarding the Realtime Register Privacy Service can be located here

 

Berlin Group to ICANN, WHOIS is not your only GDPR problem

Just before ICANN 61, ICANN and its community received essential information regarding WHOIS and the GDPR and more.
The latest statement and recommendations are from the Berlin Group (International Working Group on Data Protection in Telecommunications and Media or IWGDPT).

The Berlin Group started out in 1983 on the initiative of some national data protection authorities; nowadays members include government agencies, representatives of international organizations and IT experts from all over the world.

So basically we have the opinion on ICANN and registrant data and WHOIS vetted by all the members of the International Conference of Data Protection and Privacy Commissioners from around the world (see https://icdppc.org/ ).
And let me put this into perspective for you as a reader. There are 122 countries with data protection laws, this opinion, is not just the opinion of a few EU DPA’s, far from it.

A few highlights from the report.

First, the report describes the current procedure for registrars regarding WHOIS and conflicts with data protection law. This procedure created in 2006 is currently not workable for registrars, and the report explains why it is barely used.

Moving on.
The report sets out that the data collection as required by the RAA 2013 (the contract between ICANN and registrars) appear to be excessive, disproportionate and obtained without free consent. My personal opinion, it is not a matter of appearance, it is the reality.

WHOIS
The Berlin group observes that publication of personal data in the WHOIS is a no go, and data gathered by service providers creates barriers for registrants to have their data removed. The examples cited are DomainIQ and Domain Tools. Anyone who knows a little about the DNS knows that it does not stop with those two companies, we are talking hundreds of companies who harvest WHOIS data.

Recommendations extracts.

1 All current WHOIS purposes for several stakeholders are not necessarily legitimate purposes and require remediation.

2 Purpose, purpose, purpose, only process data necessary for the registration of the domain name and not beyond.,

3 LEA’s should get access to a tiered WHOIS system.
Private sector security firms, to have access to such a tiered system seems to be very problematic.

4 Data retention requirements and the RAA 2013 should be re-examined.

5 Reverse WHOIS is not a given and so is bulk data capture in the new WHOIS/RDS

6 Transborder data flow.
This advice relates to the upcoming (but still in limbo) Thick WHOIS migration. The Berlin Group is somewhat skeptical here and recommends to limit data flows when necessary. In my opinion, there is zero reason to replicate data registrant databases and centralize them at registries. It is a data breach waiting to happen, and it will happen.

7 ICANN should take into account that data from small businesses, sole contracts, home businesses, start-ups may contain personal data.

There are several ICANN stakeholders, who push for a distinction between commercial and personal data.
The Berlin Group notes that there is a distinction, but it does not mean that it is up to ICANN or the WHOIS to make such a difference.
In most cases, if not all, regional law or national law requires companies to publish their contact data on their website(s) NOT the WHOIS.

8 There are, as mentioned earlier 122 countries with data protection laws, ICANN should make sure it is compliant with the highest data protection requirements.

Let us hope that ICANN takes the recommendations seriously and goes back to its core function.

The Berlin Group recommendations can be read in full here.

Update on ICANN and WHOIS

Kevin Murphy from DomainIncite has written an excellent article about the all the ins and outs how WHOIS might look like in May this year, which you can read here.

I do not entirely agree with Kevin if privacy services are going to be free.
In the current setup, our privacy proxy service still has added value when it comes to spam prevention.
I think it is more accurate, that if ICANN no longer requires personal data to be displayed in the WHOIS the need use a privacy service to prevent such display of personal data becomes obsolete, after all that is what a privacy service does, replacement of personal data from the registrant through the use a privacy proxy service.
Many data protection laws have a data minimization requirement, which is absent in the ICANN proposal. The Realtime Register privacy proxy service makes sure that such condition is fulfilled. Of course, there is a chance that ICANN will stop with the Thick WHOIS requirements, but for now, the ICANN community is not ready for such chance.

The ICANN model still requires that the organization/company field should always be displayed.
I do not agree, while it is true that companies are exempt from the GDPR, it is not up to ICANN to make the distinction here and would go against the recommendation of the ICANN PPSAI working group. This group recommended that there is no distinction between natural persons and companies when it comes to the usage of privacy proxy services. Why ICANN thinks they are in charge to make the distinction is beyond me.
In most cases, if not all, regional law or national law requires companies to publish their contact data on their website(s) NOT the WHOIS.

My advice to our customers, use our privacy service (or data protection compliance service) at all times. You can read more regarding this service here.

With ICANN 61 starting this week, we will soon know more how the WHOIS will look like. ICANN still seeking input, so some of it is subject to change, though I think we have a rough outline now on how it will look like.