ICANN Accepts WHOIS Proposal Over Stakeholder Objections - International Trademark Association

The policymaking body of the Internet Corporation for Assigned Names and Numbers (ICANN) took a major step in adopting a new system for collecting and processing requests for access to domain name registration data. However, the process left more open questions than it answered, and brand owners are no closer to access than when the policy development process started two years ago.

The Generic Names Supporting Organization (GNSO) of ICANN voted on September 24 to accept the recommendations in the final report of the Expedited Policy Development Process working group regarding collection, processing, and access to domain name registration information, also known as WHOIS data.

The acceptance of the recommendations came over substantive objections from the Intellectual Property Constituency (IPC) and Business Constituency, the Governmental Advisory Committee, the At-Large Advisory Committee, and the Security and Stability Advisory Committee within ICANN. IPC, of which INTA is a founding member, voted against a substantial part of the report, which was divided into specific recommendations. This is because the task appears to be half done and not fit for purpose.

In general, the recommendations provide a system for collecting and routing domain name registration requests, but there are no guarantees for responses except in very limited cases. Normally, once the GNSO has accepted a report, it would be forwarded to the ICANN Board for consideration. However, a new layer of review was introduced during ICANN’s recent Annual General Meeting, which was held October 13–22.

ICANN CEO Goran Marby announced the Operational Development Process, which will provide facts and figures to the ICANN Board regarding expected implementation costs should the Board vote to adopt the recommendations in the report. This announcement met with mixed reactions from the ICANN community as it could cause more delays. On the other hand, some are applauding the initiative as a step to properly inform the Board’s decisions. As the process is brand new, it is unclear how it will work, and INTA will be monitoring its development.

Since May 2018, when formerly public WHOIS information went dark, and the utility of WHOIS as a domain enforcement tool was destroyed, ICANN has been working to replace the temporary specification with a permanent solution that is GDPR compliant. The work included intense negotiations with registrars, registries, intellectual property (IP) owners, the business community, and civil society. It also solicited consultation from the European Data Protection Board and other legal experts. At the end of day, a tortured solution was reached that only addresses half the problem.

In the final report, negotiated features of the proposed system include the following details:

IP investigation is recognized as a legitimate purpose for requesting data;
Requests should not be denied merely because they are related to IP-infringing content on websites;
Denials must include a rationale and must be sent to ICANN;
Registrants must be informed that third parties can process data for IP purposes;
Average response time varies by request type—but typically takes from 5 to 10 business days; and
Brand owners requesting user information will receive access to a centralized ticketing system for tracking the request.

However, despite the acceptance of the report, many open questions remain, including the lack of guaranteed accuracy of data provided, lack of distinction between legal and natural persons, and lack of meaningful enforcement by ICANN. Additionally, costs for requests to be borne by the requestors and responses are at the controller’s subjective discretion.

Governments, IP rights owners, cybersecurity experts, and end users hope that there may be more room for additional accommodation in terms of granting timely access for WHOIS information rather than just a centralized method for requests. As it stands, it will take years to implement the current system.

John McElwaine (Nelson Mullins, Charleston, USA) is one of the representatives of the IPC to the GNSO. He is also a long-time INTA member and former chair of INTA’s Internet Committee. His observation of the vote and the proceedings is that it is important for the ICANN community to know that despite their “no” vote, IP owners are ready to continue the work to find a solution.

“Although some members of the IPC are tired and frustrated with the process, the IPC’s minority statement encourages the ICANN Board to listen to the concerns of the stakeholders and reject some of the more concerning recommendations and return them to community for resolution,” Mr. McElwaine said.

INTA’s Internet Committee developed the WHOIS Toolkit for those looking for guidance on how to navigate the redacted WHOIS system. The Committee is continuing its advocacy efforts within ICANN, governments, and the domain industry to see what, if any, more favorable solutions can be developed. The Committee expects additional negotiating phases within ICANN but there is no defined process for doing so now.

For a comprehensive update on WHOIS access and the negotiations with ICANN, please see INTA’s webinar “WHOIS Access: Are We Any Closer?” or contact us.

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