INTA Continues Dialogue on Internet Governance, WHOIS Concerns

European Commission’s High-Level Discussion on Internet Governance

INTA participated in the European Commission’s High-Level Discussion on Internet Governance (HLIG) in Brussels, Belgium, on February 19. The HLIG, which is held several weeks prior to the three times yearly Internet Corporation for Assigned Names and Numbers (ICANN) public meetings, focuses on European Union members states’ participation in a variety of Internet governance initiatives, including ICANN, the Internet Governance Forum (IGF), EuroDIG (Europe’s regional IGF), and the UN Secretary General’s High-level Panel on Digital Cooperation (UNHLP).

The morning session was an open session, which gave a variety of stakeholders the opportunity to present their points of view on critical Internet policy issues to the Commission and member states. The afternoon session was a closed meeting in which government officials addressed strategies for engagement in multiple arenas. The agenda ranged from reports on recently concluded meetings, like the IGF 2018 in Paris, France, to plans for upcoming meetings, like IGF 2019 in Paris; and EuroDIG 2019 in The Hague. The work of the UNHLP and ICANN’s WHOIS reform were also discussed. INTA provided interventions relating to the work of the IGF, UNHLP, and ICANN, as it pertains to needs and concerns of intellectual property (IP) owners.

INTA emphasized that the WHOIS discussions have not gone well for IP owners in spite of the diligent efforts of the IP and business constituencies to bring IP concerns to the forefront of the discussion. In fact, the recently completed Initial Report from ICANN’s Expedited Policy Development Process (EPDP) on WHOIS, takes ICANN a step backward in addressing trademark owners’ concerns about data collection and access under ICANN’s Temporary Specification policy, known as Temp Spec. Temp Spec was developed as a response to the implementation of the EU’s General Data Privacy Regulation (GDPR). As Phase 2 of the EPDP gets under way, more consideration needs to be given to a balanced approach to information vital to law enforcement, cybersecurity, and IP enforcement concerns.

In addition, the Commission asked general policy questions regarding the EU’s role in the Internet debate vis-à-vis the United States and China, realistic expectations of outcomes for the IGF, and the priority issues in Internet governance. The Commission seemed very sincere in its efforts to solicit public feedback on issues of concern. INTA has been invited to the next HLIG meeting, which will occur in June in connection with EuroDIG.

Almost every government official attending the HLIG is also a member of ICANN’s Governmental Advisory Committee (GAC). The GAC has been supportive of IP owners’ concerns over access to WHOIS information.

Results on WHOIS Temporary Policy Show Adverse Access and Usage
Trademark owners, as suspected, are reporting that ICANN’s implementation of its temporary policy on data collection and access under the WHOIS domain name system has adversely affected access and usage of domain name registration information and the ability to address infringing activity and to mitigate abuse, according to an analysis of information provided to INTA.

In support of the ongoing debate over WHOIS, last May, INTA instituted an open mailbox for INTA members and others to report problems and observations about the effects of Temp Spec on trademark enforcement. The Association has analyzed the information provided via the mailbox through October 2018.

The results show that, notably, the restriction on registrant contact data considerably increases the time and, as a direct corollary, costs expended to obtain domain name registration information that was traditionally accessed from WHOIS records. Investigations into counterfeiting also have been made much more difficult.

For example, one respondent indicates that “the anonymizing of WHOIS information has made our job much more difficult battling illicit online pharmacies selling potential counterfeit products and products outside the legitimate supply chain.”

Further, information that brand owners need for corporate due diligence and domain portfolio management is no longer available, causing increased costs and delays in transactions. Trademark owners considering filing administrative action under the Uniform Dispute Resolution Policy or Uniform Rapid Suspension must file first before they can assess who the defendant might be. This promotes the filing of what could be unnecessary claims absent prior knowledge of the defendant.

Among several recommendations in the report, there is a suggestion to provide wide access to materials to educate the public on how to gain access to registrant data (in lieu of WHOIS). INTA has created the WHOIS Toolkit to advance these efforts. The WHOIS Toolkit may be accessed here.

INTA will continue to monitor the effects of ICANN’s policies on WHOIS and the [email protected] mailbox will remain open indefinitely. Click here to read the full report.

Other Issues Being Addressed
Although WHOIS and GDPR dominate the discourse inside and outside ICANN, INTA continues its advocacy efforts in other areas, such as: the analysis of the Rights Protection Mechanisms Review; the rules surrounding the New gTLD Subsequent Procedures for new rounds of applications; and ICANN’s compliance and governance issues.

Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.